Von Hegel v. Brixmor Sunshine Square, LLC

• Decision Date: 05 February 2020
• Docket Number: 2018-08574,Index No. 603137/15
• Citation: Von Hegel v. Brixmor Sunshine Square, LLC, 180 A.D.3d 727, 115 N.Y.S.3d 712(Mem) (N.Y. App. Div. 2020)
• Parties: William VON HEGEL, et al., respondents, v. BRIXMOR SUNSHINE SQUARE, LLC, et al., appellants.
• Court: New York Supreme Court — Appellate Division

180 A.D.3d 727

115 N.Y.S.3d 712 (Mem)

William VON HEGEL, et al., respondents,

v.BRIXMOR SUNSHINE SQUARE, LLC, et al., appellants.

2018-08574

Index No. 603137/15

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

Argued - November 8, 2019

February 5, 2020

Mintzer Sarowitz Zeris Ledva & Meyers LLP, Hicksville, N.Y. (Bradley J. Levin of counsel), for appellants.

David M. Ardam, P.C., Commack, NY, for respondents.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated June 13, 2018. The order, insofar as appealed from, denied that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) and granted that branch of the plaintiffs' cross motion which was for summary judgment on the issue of liability on that cause of action.

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

In 2013, the plaintiff William Von Hegel (hereinafter the injured plaintiff) was employed as a maintenance specialist by nonparty RFE Incorporated. He was assigned to perform repair work at a Ruby Tuesday restaurant located in Medford. The subject premises was owned by the defendant Brixmor Sunshine Square, LLC, and leased by the defendant RT Long Island Franchise, LLC, doing business as Ruby Tuesday.

On October 24, 2013, while working at the subject premises, the injured plaintiff allegedly sustained injuries when the feet of a ladder on which he was working slipped, causing him to fall. The injured plaintiff, and his wife suing derivatively, commenced the instant action against the defendants, alleging, inter alia, a violation of Labor Law § 240(1). At the completion of discovery, the defendants moved, inter alia, for summary judgment dismissing that cause of action, and the plaintiffs cross-moved, inter alia, for summary judgment on the issue of liability on that cause of action. By order dated June 13, 2018, the Supreme Court, inter alia, denied that branch of the defendant's motion and granted that branch of the plaintiffs' cross motion. The defendants appeal.

" Labor Law § 240(1) imposes a nondelegable duty [and absolute liability] upon owners and general contractors and their agents to provide safety devices necessary to protect workers from risks inherent in elevated work sites" ( Caiazzo v. Mark Joseph Contr., Inc., 119 A.D.3d 718, 720, 990 N.Y.S.2d 529 ; see Canas v. Harbour at Blue Point Home Owners Assn., Inc., 99 A.D.3d 962, 963, 953 N.Y.S.2d 150 ). To prevail on a cause of action alleging a violation of Labor Law § 240(1), a plaintiff must prove that the defendant violated the statute and that such 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, 771 N.Y.S.2d 484, 803 N.E.2d 757 ). Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1) (see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d at 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 ). "[W]here an accident is caused by a violation of the statute, the plaintiff's own negligence does not furnish a defense" ( Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39, 790 N.Y.S.2d 74, 823 N.E.2d 439 ).

"Whether a device provides proper protection is a question of fact, except when the device collapses, moves, falls, or otherwise fails to support the plaintiff and his or her materials" ( Melchor v. Singh, 90 A.D.3d 866, 868, 935 N.Y.S.2d 106 ). Specifically, with regard to accidents involving ladders, "liability will be imposed when the evidence shows that the subject ladder was ... inadequately secured and that ... the failure to secure the ladder was a substantial factor in causing the plaintiff's injuries" ( Canas v. Harbour at Blue Point Home Owners Assn., Inc., 99 A.D.3d at 963, 953 N.Y.S.2d 150 [internal quotation marks omitted] ). Here, the injured plaintiff's uncontroverted testimony that the accident occurred because the feet of the subject ladder slipped away from the wall was sufficient to establish, prima facie, the plaintiffs' entitlement to summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) (see Poalacin v. Mall Props., Inc., 155 A.D.3d 900, 906, 63 N.Y.S.3d 679 ; Przyborowski v. A & M Cook, LLC, 120 A.D.3d 651, 653, 992 N.Y.S.2d 56 ).

" ‘Once the plaintiff makes a prima facie showing the burden then shifts to the defendant, who may defeat plaintiff's motion for summary judgment only if there is a plausible view of the evidence—enough to raise a fact question—that there was no statutory violation and that plaintiff's own acts or omissions were the sole cause of the accident’ " ( Bermejo v. New York City Health & Hosps. Corp., 119 A.D.3d 500, 502, 989 N.Y.S.2d 490, quoting Blake v. Neighborhood Hous. Servs., 1 N.Y.3d at 289 n. 8, 771 N.Y.S.2d 484, 803 N.E.2d 757 ). Here, in opposition to the...