Rodriguez v. New York City Housing Authority

• Decision Date: 22 June 1993
• Citation: 194 A.D.2d 460,599 N.Y.S.2d 263
• Court: New York Supreme Court — Appellate Division
• Parties: Jose RODRIGUEZ, Plaintiff-Appellant, v. NEW YORK CITY HOUSING AUTHORITY, et al., Defendants-Respondents. NEW YORK CITY HOUSING AUTHORITY, Third-Party Plaintiff-Respondent, v. ANTENNA & COMMUNICATION CORP., Third-Party Defendant-Respondent.

Page 263

599 N.Y.S.2d 263

194 A.D.2d 460

Jose RODRIGUEZ, Plaintiff-Appellant, v. NEW YORK CITY HOUSING AUTHORITY, et al., Defendants-Respondents.

NEW YORK CITY HOUSING AUTHORITY, Third-Party Plaintiff-Respondent, v. ANTENNA & COMMUNICATION CORP., Third-Party Defendant-Respondent.

Supreme Court, Appellate Division First Department.

June 22, 1993.

Before CARRO, J.P., and MILONAS, WALLACH, KASSAL, and NARDELLI, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County (Leland DeGrasse, J.), entered on or about October 15, 1992, which, inter alia, denied plaintiff's motion for summary judgment pursuant to Labor Law §§ 200, 240 and 241, is unanimously modified on the law to the extent of granting plaintiff's motion for summary judgment on his Labor Law § 240(1) claim and otherwise affirmed, without costs or disbursements.

Plaintiff, an employee of third-party defendant Antenna & Communication Corp., commenced this action to recover damages for personal injuries allegedly sustained on August 25, 1988 when he fell off a ladder that was positioned next to the building located at 435 East 105th Street in Manhattan. At the time of the incident, plaintiff, who was standing approximately 15 to 20 feet from the ground, was engaged in repairing and replacing television cable wire that was attached to, and running through, the structure, which is owned by defendant New York City Housing Authority. According to plaintiff, the ladder contained no safety devices, was not secured in any way and was not supported by a coworker.

In denying plaintiff's motion for summary judgment pursuant to Labor Law §§ 200, 240 and 241, the Supreme Court stated that such relief is inappropriate where "the injured party is the apparent sole witness to the accident, as the salient facts are exclusively within his knowledge and his credibility is placed in issue". The court also observed that the parties disagree "as to whether at the time of the accident plaintiff was engaged in the 'repairs' of a building or structure within the contemplation of Labor Law § 240", and it was "loath to grant summary judgment in the absence of ACC's [Antenna & Communication Corp.] deposition which could shed light on what plaintiff's assigned tasks were." This was error. Plaintiff is entitled to summary judgment as to defendants' liability under section 240(1) of the Labor Law. Labor Law § 240(1) provides in relevant part that:

All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

The law is established that Labor Law § 240(1) imposes absolute liability upon owners, contractors or their agents for failing to furnish or erect safety devices that are necessary to protect workers from suffering injuries proximately related to the lack of those implements (Bland v. Manocherian, 66 N.Y.2d 452, 459, 497 N.Y.S.2d 880, 488 N.E.2d 810; see also Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102, 482 N.E.2d 898, rearg. denied 65 N.Y.2d 1054, 494 N.Y.S.2d 1033, 484 N.E.2d 1055; D'Amico v. Manufacturers Hanover Trust Co., 177 A.D.2d 441, 576 N.Y.S.2d 536). Moreover, as this court recently stated in Urrea v. Sedgwick Avenue Associates, 191 A.D.2d 319, 595 N.Y.S.2d 46, "[t]he failure to secure the ladder on which plaintiff was standing against slippage by any means whatsoever constitutes a violation of Labor Law § 240(1) as a matter of law" (at 320, 595 N.Y.S.2d 46; see also Fernandez v. MHP Land Associates, 188 A.D.2d 417, 591 N.Y.S.2d 835). Significantly, the court noted in Urrea v. Sedgwick Avenue Associates, supra, that "[t]he failure of any party to adduce a statement from plaintiff's co-workers is no reason for denying plaintiff summary judgment, absent a showing, other than mere speculation, that a bona fide issue exists as to plaintiff's credibility" (191 A.D.2d at 320, 595 N.Y.S.2d 46).

Where the injured worker's version of the accident is inconsistent with either his own previous account or that of another witness, a triable question of fact may be presented (see Carlos v. Rochester General Hospital, 163 A.D.2d 894, 558 N.Y.S.2d 417; Russell v. Rensselaer Polytechnic Institute, 160 A.D.2d 1215, 555 N.Y.S.2d 480; Antunes v. 950 Park Avenue Corp., 149 A.D.2d 332, 539 N.Y.S.2d 909). However, there is no conflict concerning what occurred here. Plaintiff's unrebutted contention is that he fell from the top of the unsecured ladder when it slipped and gave way. The fact that plaintiff was willing to stand on the ladder without its being adequately supported does not diminish defendants' responsibility. At most, it raises the matter of whether there was any comparative...