Ponce v. St. John's Cemetery

• Decision Date: 28 December 1995
• Citation: 636 N.Y.S.2d 28,222 A.D.2d 361
• Court: New York Supreme Court — Appellate Division
• Parties: Lucy L. PONCE, Plaintiff-Appellant, v. ST. JOHN'S CEMETERY, et al., Defendants-Respondents/Third-Party Plaintiffs-Respondents, v. COTRONEO & MARINO UNITED ELECTRIC COMPANY, INC., Third-Party Defendant-Respondent.

Page 28

636 N.Y.S.2d 28

222 A.D.2d 361

Lucy L. PONCE, Plaintiff-Appellant, v. ST. JOHN'S CEMETERY, et al., Defendants-Respondents/Third-Party Plaintiffs-Respondents, v. COTRONEO & MARINO UNITED ELECTRIC COMPANY, INC., Third-Party

Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Dec. 28, 1995.

B.J. Isaac, for plaintiff.

A. Russo, for defendants-respondents.

Before ROSENBERGER, J.P., and RUBIN, KUPFERMAN, ASCH and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered May 18, 1994, which denied plaintiff's motion for summary judgment on the issue of liability pursuant to Labor Law § 240, affirmed, without costs.

Absolute liability is imposed upon owners and contractors pursuant to Labor Law § 240(1) upon proof of a violation thereof and that such violation was the proximate cause of the injuries sustained (Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102, 482 N.E.2d 898). However, as almost no pretrial discovery has been conducted herein, the court properly denied summary judgment against the owner defendants pursuant to CPLR 3212(f). In these circumstances, discovery may yield information allowing defendants-respondents to raise issues of facts as to whether, inter alia, a statutory violation was the proximate cause of the accident (see, Avner v. 93rd St. Assn., 147 A.D.2d 414, 538 N.Y.S.2d 258).

All concur except ROSENBERGER and RUBIN, JJ. who dissent in a memorandum by RUBIN, J. as follows.

RUBIN, Justice (dissenting).

This action arises out of the performance of electrical work by third-party defendant Cotroneo & Marino United Electric Company for the owner of the premises, defendant St. John's Cemetery. At the time of the accident, plaintiff was employed by the electrical contractor as an electrical apprentice. Her action against defendant is based on violation of Labor Law § 240(1).

Plaintiff's affidavit in support of her motion for summary judgment against defendant states, "As I was just placing the final strap to secure the electrical lines in the top corner of the ceiling, the ladder and platform upon which I was working started to sway and gave out from under me. Several employees of the defendants were present at the time of my fall and witnessed the accident."

In opposition to the motion, defendant submitted the affidavit of defendant's director of operations, Joseph D'Alto, which confirms that third-party defendant "United Electric was requested to provide certain electrical services in the loading dock area of the Resurrection Mausoleum. It is my recollection that the work that was needed to be performed was that of supplying electrical power to a conveyer belt which had recently been placed within the loading dock area * * * To my knowledge, this work merely required the electricians to tap into an electrical power source contained within the ceiling of the loading bay area and then run wiring through piping attached to the walls of the loading dock area to a switchbox which operated the conveyer belt." The statement goes on to assert that, when the accident occurred, "plaintiff was in the process of placing ceiling tiles back into the ceiling which had been removed days before when the electrical connections were being made. It is my further understanding that it was the plaintiff and/or her co-workers who placed and/or constructed the scaffolding being used by plaintiff at the time of her accident."

To recover damages as a member of the special class for whose protection Labor Law §§ 200, 240 and 241 were adopted, a plaintiff is required to establish only two things: (1) that he or she was permitted or suffered to perform work on a structure and, (2) that he or she was hired by the owner, the general contractor or an agent of the owner or general contractor (Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 576-577, 561 N.Y.S.2d 892, 563 N.E.2d 263, citing Whelen v. Warwick Val. Civic & Social Club, 47 N.Y.2d 970, 971, 419 N.Y.S.2d 959, 393 N.E.2d 1032). Nothing in the statement of defendant's director of operations raises an issue of fact with respect to plaintiff's fulfillment of these criteria. His affidavit concedes that plaintiff was working at ceiling height and using scaffolding at the time she fell.

Defendant has offered no evidence from any witness to contradict plaintiff's statement regarding the circumstances of the accident. Nowhere in his affidavit in opposition to the motion does Mr. D'Alto deny plaintiff's assertion that her fall was witnessed by employees of defendant cemetery. Only the opposing affidavit submitted by defendant's attorney asserts that no employees of the cemetery were present at the time of the accident, and it is well settled that the affidavit of counsel is of no probative value in opposing a motion for summary judgment (Hasbrouck v. City of Gloversville, 102 A.D.2d 905, 477 N.Y.S.2d 486, affd 63 N.Y.2d 916, 483 N.Y.S.2d 214, 472 N.E.2d 1042; Farragut Gardens No. 5 v. Milrot, 23 A.D.2d 889, 260 N.Y.S.2d 597) when unaccompanied by supporting documentary evidence (Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718). By contrast, despite defendant's attempt to deprecate its value, the statement of a party witness constitutes competent evidence (Tungsupong v. Bronx-Lebanon Hosp. Center, 213 A.D.2d 236, 237, 623 N.Y.S.2d 866, citing Harris v. City of New York, 147 A.D.2d 186, 189, 542 N.Y.S.2d 550).

It is of no moment that the scaffolding may have been erected by plaintiff and other employees of the electrical contractor. Labor Law § 240(1) imposes absolute liability on the property owner for any injury which results from the use of an unsafe scaffolding device. Because the liability imposed is vicarious, neither the lack of an employer-employee relationship nor the absence of the owner's supervision, direction and control over the work is a material consideration (Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102, 482 N.E.2d 898; Haimes v. New York Tel. Co., 46 N.Y.2d 132, 412 N.Y.S.2d 863, 385 N.E.2d 601). This Court has held that, where a worker's injuries result from the collapse of a scaffold supplied and erected by his employer, the owner who hired the employer to install a water tank on the roof of the premises is answerable in damages (Hauff v. CLXXXII Via Magna Corp., 118 A.D.2d 485, 499 N.Y.S.2d 958; see also, Harmon v. Sager, 106 A.D.2d 704, 483 N.Y.S.2d 751 [ladder supplied...