Yaucan v. Hawthorne Vill., LLC
| Citation | 63 N.Y.S.3d 721 (Mem),155 A.D.3d 924 |
| Decision Date | 15 November 2017 |
| Docket Number | 2015-03964, Index No. 11961/11. |
| Parties | Edgar YAUCAN, Respondent, v. HAWTHORNE VILLAGE, LLC, et al., Appellants. |
| Court | New York Supreme Court Appellate Division |
155 A.D.3d 924
63 N.Y.S.3d 721 (Mem)
Edgar YAUCAN, Respondent,
v.
HAWTHORNE VILLAGE, LLC, et al., Appellants.
2015-03964, Index No. 11961/11.
Supreme Court, Appellate Division, Second Department, New York.
Nov. 15, 2017.
Weiner, Millo, Morgan & Bonanno, LLC, New York, NY (Robert J. Faderl of Counsel), for appellants.
Gorayeb & Associates, P.C., New York, NY (John M. Shaw of Counsel), for respondent.
MARK C. DILLON, J.P. RUTH C. BALKIN L. PRISCILLA HALL HECTOR D. LASALLE, JJ.
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Ash, J.), dated February 5, 2015, as granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action, and denied those branches of their cross motion which were for summary judgment dismissing the Labor Law § 240(1) cause of action and so much of the Labor Law § 241(6) cause of action as was predicated on a violation of Industrial Code ( 12 NYCRR) § 23–1.16(b).
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff, a demolition worker employed by a subcontractor
hired by the defendant RD2 Demolition and Construction, LLC, which was itself a subcontractor, allegedly was injured when he fell from a scaffold while working on a building renovation project. Prior to the accident, the plaintiff, who had been assigned to remove windows from the third floor of the building, was standing on a six-foot scaffold without guardrails, and was wearing a harness and a lifeline which he tied to a wooden column of the building. The plaintiff cut a large piece of iron window frame and threw it to the ground, and the piece struck the scaffold on the way down. The scaffold allegedly moved, causing the plaintiff to lose his balance, jump from the scaffold, and fall to the ground. The lifeline did not arrest his fall because it was too long.
The plaintiff commenced this action against, among others, the owner of the building and the general contractor on the project, alleging, inter alia, violations of Labor Law §§ 240(1) and 241(6). After
issue was joined, the plaintiff moved for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action and so much of the Labor Law § 241(6) cause of action as was predicated on a violation of Industrial Code ( 12 NYCRR) § 23–1.16(b). Thereafter, the defendants cross-moved, inter alia, for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) causes of action. The Supreme Court, inter alia, granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action, and denied those branches of the defendants' cross motion which were for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) causes of action. The defendants appeal.
Labor Law § 240(1) imposes a nondelegable duty upon owners and general contractors, and their agents, to provide safety devices necessary to protect workers from the risks inherent in elevated work sites (see Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 96, 7 N.Y.S.3d 263, 30 N.E.3d 154 ; Alvarez v. Vingsan L.P., 150 A.D.3d 1177, 1179, 57 N.Y.S.3d 160 ). The availability of a particular safety device will not preclude liability "if the device alone is not...
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