Powers v. Lino Del Zotto and Son Builders Inc.

• Decision Date: 10 November 1999
• Citation: 698 N.Y.S.2d 74
• Parties: Jody C. POWERS et al., Respondents, v. LINO DEL ZOTTO AND SON BUILDERS INC., Defendant and Third-Party Plaintiff-Appellant; Steve Reutter Sr., Third-Party Defendant-Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 74

698 N.Y.S.2d 74

Jody C. POWERS et al., Respondents, v. LINO DEL ZOTTO AND SON BUILDERS INC., Defendant and Third-Party Plaintiff-Appellant Steve Reutter Sr., Third-Party Defendant-Respondent-Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 10, 1999.

Friedman, Hirschen, Miller, Coughlin & Campito (Nathaniel H. Barber of counsel), Schenectady, for defendant and third-party plaintiff-appellant.

O'Connor & Yoquinto (Kerriann P. Coleman of counsel), Troy, for third-party defendant-respondent-appellant.

Bendall & Mednick (Gary P. Delisle of counsel), Schenectady, for respondents.

Before: MERCURE, J.P., CREW III, PETERS, SPAIN and GRAFFEO, JJ.

SPAIN, J.

Appeal from an order of the Supreme Court (Lynch, J.), entered August 10, 1998 in Schenectady County, which, inter alia, granted plaintiffs' motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240(1).

In July 1994, plaintiff Jody C. Powers (hereinafter plaintiff) was injured when he fell from a sawhorse while working on the construction of a building while employed as a laborer for third-party defendant, Steve Reutter Sr. Defendant was the general contractor as well as the owner of the subject property. Plaintiff sustained injuries when he fell from the sawhorse while attempting, without assistance, to install a beam at the top of the first-story wall. He alleges that he was standing on one end of the sawhorse when the other end opposite to where he was standing lifted, causing him to lose his balance and control of the beam and fall, at which point he was struck by the joist hangars attached to the falling beam.

Plaintiff and his wife, derivatively, commenced this action against defendant premised upon Labor Law § 240(1) and common-law negligence, and then moved for partial summary judgment on the issue of liability on their statutory claim. Defendant opposed and cross-moved for summary judgment on its third-party complaint against Reutter for indemnification, and also cross-moved for summary judgment dismissing plaintiffs' common-law negligence claim. Reutter opposed all motions. Supreme Court granted plaintiffs' motion for partial summary judgment on liability on their Labor Law claim but otherwise denied defendant's motions. Defendant appeals and Reutter cross-appeals and, upon review, we conclude there should be an affirmance.

First, Supreme Court correctly awarded plaintiffs summary judgment on the issue of liability on their Labor Law § 240(1) cause of action. It is uncontroverted that at the time of this accident plaintiff was engaged in construction work, an occupational hazard encompassed within Labor Law § 240(1), and that the injury was the result of his fall from an elevated worksite which caused him to lose control of the beam he was attempting to install which then struck him. This is the precise type of special elevation-related hazard to which the nondelegable duty of Labor Law § 240 attaches (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 560-562, 606 N.Y.S.2d 127, 626 N.E.2d 912; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500-501, 601 N.Y.S.2d 49, 618 N.E.2d 82; cf., Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 634 N.Y.S.2d 35, 657 N.E.2d 1318).

Defendant and Reutter contend that they raised a question of fact regarding the recalcitrant worker defense which would allow them to escape the absolute liability imposed by Labor Law § 240(1). Success on this "recalcitrant worker" defense requires a showing that the safety device in question was both available and visibly in place at the immediate worksite of the injured employee who deliberately refused to use it (see, Kaffke v. New York State Elec. & Gas Corp., 257 A.D.2d 840, 685 N.Y.S.2d 305; see also, Gordon v. Eastern Ry. Supply, supra, at 563, 606 N.Y.S.2d 127, 626 N.E.2d 912; Tennant v. Curcio, 237 A.D.2d 733, 655 N.Y.S.2d 118; Watso v. Metropolitan Life Ins. Co., 228 A.D.2d 883, 644 N.Y.S.2d 399; Jastrzebski v. North Shore School Dist., 223 A.D.2d 677, 637 N.Y.S.2d 439, affd. 88 N.Y.2d 946, 647 N.Y.S.2d 708, 670 N.E.2d 1339; Hall v. Cornell Univ., 205 A.D.2d 872, 612 N.Y.S.2d 694). Thus, this defense is not established merely by showing that the worker failed to comply with an employer's instruction to avoid using unsafe equipment or engaging in unsafe practices, or to use a particular safety device (see, Gordon v. Eastern Ry. Supply, supra, at 563, 606 N.Y.S.2d 127, 626 N.E.2d 912; Stolt v. General Foods Corp., 81 N.Y.2d 918, 920, 597 N.Y.S.2d 650, 613 N.E.2d 556; Hagins v. State of New York, 81 N.Y.2d 921, 922, 597 N.Y.S.2d 651, 613 N.E.2d 557; Tennant v. Curcio, supra, at 734, 655 N.Y.S.2d 118; Fichter v. Smith, 259 A.D.2d 1023, 688 N.Y.S.2d 337, lv. dismissed, lv. denied 93 N.Y.2d 994, 696 N.Y.S.2d 104, 718 N.E.2d 409), and " 'the mere presence of safety devices at the worksite does not diminish [a] defendant's liability' " (Hall v. Cornell Univ., supra, at 874, 612 N.Y.S.2d 694, quoting Neville v. Deters, 175 A.D.2d 597, 597, 572 N.Y.S.2d 256).

In support of their motion, plaintiffs submitted plaintiff's testimony wherein he asserted that while the normal procedure for the installation of the beam would have been to use a stepladder, all three of the jobsite stepladders were in use by his three co-workers who were otherwise engaged at the time, so he decided to install the beam by himself using the sawhorse. He contends that he was given no safety instructions in this regard. This testimony satisfied plaintiffs' burden of establishing, prima facie, defendant's and Reutter's liability under Labor Law § 240(1).

Plaintiff's supervisor asserts in an affidavit that there were stepladders available at the job site that day and that he had instructed plaintiff not to attempt to install the beam by himself, not to stand on the sawhorse, and to use a stepladder. These contentions are not sufficient to raise a question of fact on this defense (see, Gordon v. Eastern Ry. Supply, supra, at 563, 606 N.Y.S.2d 127, 626 N.E.2d 912; Tennant v. Curcio, supra, at 734-735, 655 N.Y.S.2d 118). Notably, the supervisor did not claim that he actually provided plaintiff with a safety device or indicate where it was located or that it was in place (see, Gordon v. Eastern Ry. Supply, supra; Stolt v. General Foods Corp., supra; Hagins v. State of New York, supra; Tennant v. Curcio, supra; cf., Mills v. Niagara Mohawk Power Corp., ---A.D.2d ----, 692 N.Y.S.2d 493; Harrington v. State of New York, 255 A.D.2d 819, 681 N.Y.S.2d 122; Watso v. Metropolitan Life Ins. Co., supra; Jastrzebski v. North Shore School Dist., supra, at 678-679, 637 N.Y.S.2d 439; Smith v. Hooker Chems. & Plastics Corp., 89 A.D.2d 361, 455 N.Y.S.2d 446, appeal dismissed 58 N.Y.2d 824). Indeed, "the safety device must be visible at the worker's immediate work site" (Kaffke v. New York State Elec. & Gas Corp., supra, at 841, 685 N.Y.S.2d 305) and its "mere presence somewhere on the work site is insufficient" (id.), "particularly in the absence of evidence as to its location on the property" (Tennant v. Curcio, supra, at 735, 655 N.Y.S.2d 118) or its availability or visibility to plaintiff.

Further, even if we were to credit the supervisor's...