Opinion
769 CA 22-00501
12-23-2022
Robert HYDE, Plaintiff-Appellant, v. BVSHSSF SYRACUSE LLC, Hueber-Breuer Construction Co. Inc., Defendants-Respondents, et al., Defendant.
STANLEY LAW OFFICE, SYRACUSE (ANTHONY MARTOCCIA OF COUNSEL), FOR PLAINTIFF-APPELLANT. VAHEY LAW OFFICES, PLLC, ROCHESTER (LAURIE A. VAHEY OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
STANLEY LAW OFFICE, SYRACUSE (ANTHONY MARTOCCIA OF COUNSEL), FOR PLAINTIFF-APPELLANT.
VAHEY LAW OFFICES, PLLC, ROCHESTER (LAURIE A. VAHEY OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: WHALEN, P.J., NEMOYER, CURRAN, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs and the motion of plaintiff is granted.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries that he allegedly sustained on a construction site when he fell to the ground from a third-floor wooden platform on the exterior of the building. At the time of the incident, workers on the project would access a particular floor of the building by using a temporary elevator (lift) that was erected on the exterior of the building by defendant Hueber-Breuer Construction Co. Inc. (HBC), the general contractor of the project. At each floor, workers would step off the lift onto a temporary wooden platform landing constructed on the exterior of the building. A temporary access door was used to enter the building from the wooden platform. The access door was equipped with a make-shift lock that kept the door shut. The lock was on the outside, which prevented a person inside the building from opening the door when locked. The person operating the lift was responsible for locking the door prior to moving the lift to another floor. At the time of the incident, plaintiff and other workers had taken the lift to the third floor and entered the building to gather waste. Another worker subsequently moved the lift to another floor but did not lock the third-floor access door because the lock on that door had been removed. The accident occurred when plaintiff was pulling a waste cart and walked backwards through the unlocked access door, onto and then off of the wooden platform, falling to the ground.
Plaintiff moved for partial summary judgment on liability with respect to his Labor Law § 240 (1) claim against HBC and defendant BVSHSSF Syracuse LLC (BVSHSSF), the owner of the building (collectively, defendants). Supreme Court, inter alia, denied plaintiff's motion and plaintiff now appeals from the order to that extent.
We agree with plaintiff that the court erred in denying his motion for partial summary judgment on liability with respect to his Labor Law § 240 (1) claim against HBC and BVSHSSF. Plaintiff met his burden of establishing the absence of an adequate safety device that could have prevented his fall, namely, a lock on the third-floor access door (see Lagares v. Carrier Term. Servs., Inc. , 177 A.D.3d 1394, 1395, 113 N.Y.S.3d 790 [4th Dept. 2019] ; Lord v. Whelan & Curry Constr. Servs., Inc. , 166 A.D.3d 1496, 1497, 88 N.Y.S.3d 322 [4th Dept. 2018] ). In opposition, defendants failed to raise a triable issue of fact whether plaintiff's own negligence was the sole proximate cause of his injuries (see Lagares , 177 A.D.3d at 1395, 113 N.Y.S.3d 790 ). Here, there is no evidence in the record that plaintiff removed the lock and was therefore the sole proximate cause of the accident (cf. Kuntz v. WNYG Hous. Dev. Fund Co. Inc. , 104 A.D.3d 1337, 1338, 961 N.Y.S.2d 704 [4th Dept. 2013] ). Moreover, even assuming, arguendo, that plaintiff was negligent in walking backwards out the access door and in failing to look back prior to going through the door to ensure the lift was there, we conclude that such "actions [would] render him [merely] contributorily negligent, a defense unavailable under [ Labor Law § 240 (1) ]" ( Calderon v. Walgreen Co. , 72 A.D.3d 1532, 1533, 900 N.Y.S.2d 533 [4th Dept. 2010], appeal dismissed 15 N.Y.3d 900, 912 N.Y.S.2d 568, 938 N.E.2d 1002 [2010] ; see Barreto v. Metropolitan Transp. Auth. , 25 N.Y.3d 426, 433, 13 N.Y.S.3d 305, 34 N.E.3d 815 [2015], rearg denied 25 N.Y.3d 1211, 16 N.Y.S.3d 515, 37 N.E.3d 1159 [2015] ).