Opinion
2017-02422 2017-03183 Index No. 507818/14
09-18-2019
Cristian ROBLERO, etc., Plaintiff-Respondent, v. BAIS RUCHEL HIGH SCHOOL, INC., Defendant Third-Party Plaintiff-Appellant; ADD Plumbing, Inc., Third-Party Defendant-Respondent.
Cascone & Kluepfel (Carol F. Finocchio, New York, NY), for defendant third-party plaintiff-appellant. Proner & Proner, New York, N.Y. (Tobi R. Salottolo of counsel), for plaintiff—respondent. Paul S. Zilberfein, White Plains, NY, for third-party defendant-respondent.
Cascone & Kluepfel (Carol F. Finocchio, New York, NY), for defendant third-party plaintiff-appellant.
Proner & Proner, New York, N.Y. (Tobi R. Salottolo of counsel), for plaintiff—respondent.
Paul S. Zilberfein, White Plains, NY, for third-party defendant-respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendant third-party plaintiff appeals from (1) an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated February 24, 2017, and (2) an order of the same court also dated February 24, 2017. The first order, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). The second order denied the defendant third-party plaintiff's motion for summary judgment dismissing the plaintiff's causes of action alleging a violation of Labor Law § 200 and common-law negligence, and for summary judgment on its third-party complaint.
ORDERED that the first order is affirmed insofar as appealed from; and it is further,
ORDERED that the second order is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff-respondent and defendant-respondent.
The plaintiff allegedly was injured when he fell from a scaffold of a building owned by the defendant third-party plaintiff, Bais Ruchel High School, Inc. (hereinafter Bais Ruchel). The plaintiff had been engaged in plumbing work pursuant to an agreement between his employer, the third-party defendant, ADD Plumbing, Inc. (hereinafter ADD Plumbing), and Bais Ruchel. The plaintiff was not wearing a harness or lanyard when he fell from the scaffold.
The plaintiff commenced this action against Bais Ruchel alleging, inter alia, common-law negligence and violations of Labor Law §§ 200 and 240(1). Bais Ruchel commenced a third-party action against ADD Plumbing seeking, among other things, contractual indemnification under their subcontract. After discovery, the plaintiff moved, inter alia, for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action. Bais Ruchel separately moved for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence, and for summary judgment on its third-party complaint. The Supreme Court 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 Bais Ruchel's motion. Bais Ruchel appeals.
Under Labor Law § 240(1), owners and general contractors, and their agents, have a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites (see McCarthy v. Turner Constr., Inc. , 17 N.Y.3d 369, 374, 929 N.Y.S.2d 556, 953 N.E.2d 794 ; Probst v. 11 W. 42 Realty Invs., LLC , 106 A.D.3d 711, 965 N.Y.S.2d 513 ). To succeed on a cause of action under Labor Law § 240(1), a plaintiff must establish that the defendant violated its duty and that the violation proximately caused the plaintiff's injuries (see Fabrizi v. 1095 Ave. of the Ams., L.L.C. , 22 N.Y.3d 658, 662–663, 985 N.Y.S.2d 416, 8 N.E.3d 791 ; Blake v. Neighborhood Hous. Servs. of N.Y. City , 1 N.Y.3d 280, 287–288, 771 N.Y.S.2d 484, 803 N.E.2d 757 ; Przyborowski v. A & M Cook, LLC , 120 A.D.3d 651, 653, 992 N.Y.S.2d 56 ). A worker's comparative negligence is not a defense to a claim under Labor Law § 240(1) and does not effect a reduction in liability (see Blake v. Neighborhood Hous. Servs. of N.Y. City , 1 N.Y.3d at 286, 771 N.Y.S.2d 484, 803 N.E.2d 757 ; Garzon v. Viola , 124 A.D.3d 715, 716–717, 2 N.Y.S.3d 522 ). When, however, the worker's own conduct is the sole proximate cause of the accident, no recovery under Labor Law § 240(1) is available (see Robinson v. East Med. Ctr., LP , 6 N.Y.3d 550, 554, 814 N.Y.S.2d 589, 847 N.E.2d 1162 ; 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 ).
Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on his Labor Law § 240(1) cause of action by submitting evidence that he was not provided with necessary protection from the gravity-related risk of his work, and that the absence of the necessary protection was a proximate cause of his injuries (see Cruz v. Cablevision Sys. Corp. , 120 A.D.3d 744, 746, 992 N.Y.S.2d 281 ). In opposition, Bais Ruchel failed to raise a triable issue of fact as to whether the plaintiff's own conduct was the sole proximate cause of his injuries (see Melchor v. Singh , 90 A.D.3d 866, 869–870, 935 N.Y.S.2d 106 ; cf. Bascombe v. West 44th St. Hotel, LLC , 124 A.D.3d 812, 813, 2 N.Y.S.3d 569 ). Therefore, we agree with the Supreme Court's determination granting that branch of the plaintiff's motion which was for summary judgment on the cause of action alleging a violation of Labor Law § 240(1) (see Cacanoski v. 35 Cedar Place Assoc., LLC , 147 A.D.3d 810, 811–813, 47 N.Y.S.3d 71 ).
We also agree with the Supreme Court's determination denying that branch of Bais Ruchel's motion which was for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence. Where, as here, a claim arises out of the means and methods of the work, a defendant may be held liable for common-law negligence or a violation of Labor Law § 200 "only if he or she had ‘the authority to supervise or control the performance of the work’ " ( Forssell v. Lerner , 101 A.D.3d 807, 808, 956 N.Y.S.2d 117, quoting Ortega v. Puccia , 57 A.D.3d 54, 61, 866 N.Y.S.2d 323 ; see Russin v. Louis N. Picciano & Son , 54 N.Y.2d 311, 316–317, 445 N.Y.S.2d 127, 429 N.E.2d 805 ). "A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed" ( Ortega v. Puccia , 57 A.D.3d at 62, 866 N.Y.S.2d 323 ).
Here, Bais Ruchel failed to establish, prima facie, that it did not have the authority to exercise supervision and control over the subject work, as it had a representative at the work site on a frequent basis who was responsible for job coordination and safety supervision. Although the representative testified at his deposition "that every subcontractor is responsible for all the safety matters," he also testified that he and his site superintendent would "urge" any of the subcontractors to comply with safety regulations if they "felt something was wrong." Under these circumstances, Bais Ruchel's submissions failed to eliminate all triable issues of fact as to whether it was acting as the general contractor and had the authority to supervise and control the manner in which the plaintiff performed his work (see Russin v. Louis N. Picciano & Son , 54 N.Y.2d at 316–317, 445 N.Y.S.2d 127, 429 N.E.2d 805 ; Caban v. Plaza Const. Corp. , 153 A.D.3d 488, 490–491, 61 N.Y.S.3d 47 ; Zupan v. Irwin Contr., Inc. , 145 A.D.3d 715, 717, 43 N.Y.S.3d 113 ). As Bais Ruchel failed to meet its prima facie burden on this issue, we need not consider the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
We also agree with the Supreme Court's denial of that branch of Bais Ruchel's motion which was for summary judgment on its third-party complaint. Bais Ruchel failed to demonstrate its prima facie entitlement to judgment as a matter of law on its causes of action for common-law and contractual indemnification and contribution against ADD Plumbing because there are triable issues of fact as to the extent, if any, of its own negligence in connection with the plaintiff's accident (see Kielty v. AJS Const. of L.I., Inc. , 83 A.D.3d 1004, 1006, 922 N.Y.S.2d 467 ). Furthermore, issues pertaining to ADD Plumbing's alleged non-procurement of insurance coverage as required by its contract with Bais Ruchel are now pending in a separate declaratory judgment action, and need not be reached at this juncture (see Nenadovic v. P.T. Tenants Corp. , 94 A.D.3d 534, 535–536, 942 N.Y.S.2d 474 ; Callan v. Structure Tone, Inc. , 52 A.D.3d 334, 336, 860 N.Y.S.2d 62 ).
DILLON, J.P., CHAMBERS, HINDS–RADIX and BRATHWAITE NELSON, JJ., concur.