Opinion
101172/2005.
Decided September 21, 2007.
In this action to recover damages as the result of a workplace accident, plaintiff moves for partial summary judgment on his Labor Law § 240(1) claim. Defendant opposes the motion, which is granted for the reasons below.
Background
Plaintiff was injured on October 11, 2003, when he allegedly fell from a ladder while working on a renovation project at a brownstone located at 111 Bank Street, New York, NY. Defendant owns the brownstone and retained various contractors to renovate it, including plaintiff's employer.
According to plaintiff, at the time of the accident, he was installing windows on the first floor of the brownstone in the back of the building. Plaintiff testified that prior to the accident, he was working with two other men inside the building installing one large, heavy window. After the window was installed inside, plaintiff testified that he went outside alone "to use shims to fasten [the window]" (Plaintiff's dep. at 19).
Plaintiff testified that although the ladders used inside the building belonging to his employer were six-foot A-frame ladders which were good condition, he did not use one of these ladders outside since they were not tall enough. Instead, he used for the first time a ten foot extension ladder that belonged to another contractor.
According to plaintiff, after he fell, he noticed that the base of the ladder was metal and did not have rubber feet. Plaintiff testified that prior to the accident, he leaned the ladder against the wall, and that it was not held by other workers who remained inside. The accident happened when, as plaintiff was about to hammer shims on the top of the window, "[the] ladder fell against the wall [and he fell] . . . together with the ladder" (Plaintiff's dep. at 24). After the accident, plaintiff testified that he went inside the building.
Non-party Joe Montalto ("Montalto"), the sole shareholder of the defendant, testified on defendant's behalf. Montalto testified that when he arrived at the building, plaintiff and two or three other workers were inside and while he was told him that plaintiff hurt his arm a result of a fall from a ladder, he was not told the kind of work plaintiff was doing at the time of the accident, nor where it was being performed. He later testified that he was "pretty sure" the workers told him that the accident occurred in the front of the building.
Montalto admitted that he was not at the work site when the accident occurred, but arrived there afterwards. He testified that he thought the workers were doing sheetrocking on the day of the accident, that the work was being done inside the building, and that no work was performed in the back of the building, where, as previously stated, plaintiff alleges the windows on which he was working were located.
Montalto further testified that the windows at issue were installed a couple of months after the accident, and that he had work orders and receipts to support this. However, at another point in his deposition he testified that he was "pretty sure" that windows were installed after the accident (Montalto dep., at 22). When given the opportunity to provide receipts on the consent of the parties, the documents provided indicate that certain windows were purchased by Montalto on or about August 19, 2003, or about two months before the accident.
Montalto also testified and that the windows were installed in front of the building about a year before the accident.
During oral argument, plaintiff agreed to permit defendant to supplement the record with any receipts regarding the delivery of the windows.
Plaintiff argues that he is entitled to summary judgment as to liability on his Labor Law § 240(1) claim, as the record establishes that he was injured as a proximate cause of defendant's failure to provide a properly secured ladder or other safety devices. In support of his argument, plaintiff submits his affidavit in which he states that he fell from an unbraced and unsecured ladder while on a ladder using a hammer. Plaintiff also submits Montalto's deposition testimony and, in reply, his own deposition testimony.
In opposition, defendant argues that summary judgment must be denied as the record raises triable issues of fact regarding where the accident occurred and the type of work being performed by plaintiff at the time of the accident, and whether the work performed by plaintiff when he fell was within the scope of his duties. Defendant also argues that plaintiff has failed to establish, as a matter of law, that the extension ladder from which he fell was defective.
Discussion
On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case . . ." Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 (1985). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial. Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986).
Section 240(1) of the Labor Law imposes absolute liability on building owners, general contractors, and their agents for injuries to workers engaged in "the erection, demolition, repairing . . . of a building or structure," which result from falls from ladders, scaffolding, or other similar elevation devices that do not provide "proper protection" against such falls. Melo v. Consolidated Edison of New York, Inc., 92 NY2d 909 (1998). Of relevance here, "Labor Law § 240 (1) requires that safety devices such as ladders be so `constructed, placed and operated as to give proper protection' to a worker." Klein v City of New York, 89 NY2d 833, 834-835 (1996); see also Montalvo v J. Petrocelli Const., Inc. , 8 AD3d 173 (1st Dept 2004).
To establish liability, a plaintiff must prove that the statute was violated and that the violation was a proximate cause of the injuries sustained. Bland v. Manocherian, 66 NY2d 452 (1985). Proximate cause is demonstrated based on a showing that a "defendant's act or failure to act as the statute requires was a substantial cause of the events which produced the injury.'" Gordon v. Eastern Railway Supply, Inc., 82 NY2d 555, 562 (1993) (citation omitted). It is not necessary for plaintiff to demonstrate that the precise manner in which the accident occurred, or the extent of the injuries, was foreseeable. Rodriguez v. Forest City Jay Street Associates, 234 AD2d 68 (1st Dept. 1996), citing, Public Administrator of Bronx County v. Trump Village Construction Corp., 177 AD2d 258 (1st Dept 1991). Comparative negligence is not a defense. See Blake v. Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 289-290 (2003).
Under the above principles, plaintiff has made a prima facie showing entitling him to summary judgment as to liability on his Labor Law § 240(1) claim. Furthermore, as set forth below, defendant has failed to controvert this showing.
First, contrary to defendant's argument, Montalto's deposition testimony is insufficient to raise a triable issue of fact as to the circumstances surrounding the accident since he was not at the work site when the accident occurred and thus lacks any personal knowledge as to how it happened. Likewise, defendant submits no other evidence to substantiate Montalto's testimony as to the type of work that was performed on the accident date, or whether such work was in the scope of plaintiff's duties.
Accordingly, Montalvo's testimony constitutes speculation and does not provide a basis for denying plaintiff's summary judgment motion. See e.g., Washington v. G L Auto Corp. , 20 AD3d 332, 332-333 (1st Dept 2005)(non-eyewitness statement from defendant's principal regarding the circumstances of accident was "rank speculation" and insufficient to defeat summary judgment motion); Bruce v. Fashion Square Assocs, 8 AD3d 1053, 1054 (4th Dept 2004) (granting partial summary judgment on plaintiff's Labor Law § 240(1) claim despite deposition testimony by his employer's general manager that at the time of accident, plaintiff was performing routine maintenance outside the statute's coverage, when the general manager lacked personal knowledge and thus his testimony constituted "speculation founded upon hearsay"); Grgas v. Lehrer McGovern Bovis, Inc., 307 AD2d 982 (2nd Dept 2003) (evidence submitted in opposition to plaintiff's motion for summary judgment on his Labor Law claim, including foreman's inadmissible hearsay statement, was insufficient to raise a triable issue of fact).
Defendant's remaining argument that plaintiff has failed to establish, as a matter of law, that the extension ladder from which he fell was defective is also unavailing.
Here, plaintiff has established that he fell from a ladder which was not secured nor was it equipped with rubber feet. The Appellate Division, First Department has held that "[g]iven an unsecured ladder and no other safety devices, plaintiff cannot be held solely to blame for his injuries (citations omitted). Plaintiff's use of the ladder without his co-worker present amounted, at most, to comparative negligence, which is not a defense to a section 240(1)claim." Velasco v Green-Wood Cemetery , 8 AD3d 88 , 89 (1st Dept 2004). See also, Ranieri v. Holt Construction Corp., 33 AD3d 425 (1st Dept 2006) (granting plaintiff partial summary judgment on Labor Law section 240(1)based on "the failure to supply plaintiff with a properly secured ladder or any safety devices was a proximate cause of his fall") Samuel v. Simone Dev. Co. , 13 AD3d 112 (1st Dept 2004)(same).
Finally, the cases relied on by defendant are not controlling here, as the equipment at issue in those cases was not shown to be defective, ( see e.g., Weiss v. City of New York, 306 AD2d 64 (1st Dept 2003) (the issue of whether the ladder at issue provided proper protection under section 240(1) was properly submitted to the jury based on plaintiff's testimony that he could not recall a defect in the ladder and did not recall what caused him to fall); Weber v. 1111 Park Ave. Realty Corp., 253 AD2d 376 (1st Dept 1998) (injury resulted from fall from ladder not alleged to be defective in any way), or there were issues of fact as to whether an intervening event rather the lack of an adequate safety device proximately caused plaintiff's injuries. See e.g., Avendano v. Sazerac, Inc., 248 AD2d 340, 341 (2nd Dept 1998) (inconsistences in record as to whether ladder was struck by a forklift before it fell from ladder raised triable issues of fact as to whether ladder provided proper protection under Labor Law section 240(1))
Accordingly, as defendant has not controverted plaintiff's prima facie showing entitling him to partial summary judgment on his Labor Law § 240(1) claim, plaintiff's motion must be granted.
Conclusion
In view of the above, it is
ORDERED that plaintiff's motion for summary judgment is granted as to liability on his Labor Law § 240(1) claim.