Robinson v. Nat'l Grid Energy Mgmt., LLC

• Decision Date: 10 May 2017
• Citation: 150 A.D.3d 910,57 N.Y.S.3d 48
• Parties: Joseph ROBINSON, et al., appellants, v. NATIONAL GRID ENERGY MANAGEMENT, LLC, defendant, T–Mobile USA, Inc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 910

57 N.Y.S.3d 48

Joseph ROBINSON, et al., appellants,

v. NATIONAL GRID ENERGY MANAGEMENT, LLC, defendant,T–Mobile USA, Inc., et al., respondents.

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

May 10, 2017.

Brody, O'Connor & O'Connor, New York, NY (Scott A. Brody of counsel), for appellants.

Ahmuty, Demers & McManus, Albertson, NY (Nicholas M. Cardascia and Glenn A. Kaminska of counsel), for respondents.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LaSALLE, and VALERIE BRATHWAITE NELSON, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated March 30, 2015, as granted those branches of the motion of the defendants T–Mobile USA, Inc., and Omnipoint Communications, Inc., which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against them, and denied their cross motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against those defendants and for leave to serve a supplemental bill of particulars.

ORDERED that the order is affirmed insofar as appealed from, with costs.

This action arises out of an accident that occurred while the plaintiff Joseph Robinson (hereinafter the injured plaintiff) was employed as an electrical foreman for a company hired by the defendant T–Mobile USA, Inc. (hereinafter T–Mobile), to perform various telecommunication services. On the day of the accident, the injured plaintiff was directed to assist in the installation of an antenna atop a 60–foot utility pole leased by T–Mobile. He climbed into an aerial bucket, which was attached to a boom on a bucket truck, and tried to raise the bucket so as to access the top of the utility pole. However, the lift function on the truck malfunctioned and the bucket remained stuck in the "cradle position" on the truck; that is, the bucket did not elevate. While the injured plaintiff was inside the bucket he noticed that the "dielectric liner," which usually covers the inside of the bucket to protect workers from electrical shock, was not in place. When the injured plaintiff determined that he would be unable to raise the bucket, he started to exit the bucket, which was still in the cradle position on the body of the truck. The injured plaintiff testified at his deposition that he exited the bucket the "normal" way, by sitting on the edge of the bucket facing the inside, and turning his legs around. However, as he was turning, his foot became stuck in a part of the bucket that was usually covered by the dielectric liner, and he slipped and fell approximately 12 to 15 feet to the ground.

The injured plaintiff, and his wife suing derivatively, commenced this action against, among others, T–Mobile alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The plaintiffs subsequently filed an amended complaint adding the defendant Omnipoint Communications, Inc. (hereinafter Omnipoint), to the action. T–Mobile and Omnipoint (hereinafter together the T–Mobile defendants) moved for summary judgment dismissing the complaint insofar as asserted against them. The plaintiffs cross-moved for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action insofar as asserted against the T–Mobile defendants, and for leave to serve an amended bill of particulars so as to replace an allegation concerning one violation of the Industrial Code with several others. The Supreme Court granted the T–Mobile defendants' motion, and denied the plaintiffs' cross motion. The plaintiffs appeal.

" Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites" ( McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 374, 929 N.Y.S.2d 556, 953 N.E.2d 794 ; see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82 ; Hugo v. Sarantakos, 108 A.D.3d 744, 744–745, 970 N.Y.S.2d 245 ). To prevail on a cause of action alleging a violation of Labor Law § 240(1), a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries (see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287–289, 771 N.Y.S.2d 484, 803 N.E.2d 757 ; Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085 ). While an injured worker's comparative negligence is not a defense to a Labor Law § 240(1) cause of action, the "recalcitrant worker" defense may allow a defendant to avoid liability under the statute "where a plaintiff's own actions are the sole proximate cause of the accident" ( Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39, 790 N.Y.S.2d 74, 823 N.E.2d 439 ; see Doto v. Astoria Energy II, LLC, 129 A.D.3d 660, 662, 11 N.Y.S.3d 201 ).

Here, while the Supreme Court properly granted that branch of the T–Mobile defendants' motion which was for summary judgment dismissing the Labor Law § 240(1) cause of action insofar as asserted against them, it improperly did so based on its conclusion that the injured plaintiff's negligence in exiting the bucket was the sole proximate cause of the accident. Since the evidence presented by the T–Mobile defendants demonstrated that it was standard...