Opinion
December 27, 1990
Appeal from the Supreme Court, New York County (Eugene Nardelli, J.).
Plaintiff, a laborer employed by third-party defendant Park Avenue Enterprises, Inc., suffered disabling injury when he fell from the fourteenth floor after attempting to step from the building to an exterior hoist tower without the aid of a ramp bridging the 2 1/2-foot gap between the two structures.
Plaintiff moved for summary judgment on the issue of liability pursuant to Labor Law §§ 240 and 241 against building owner Park Avenue Plaza Co. and the general contractor, Park Avenue Enterprises, Inc., a third-party defendant in the action. Plaintiff's motion papers and supporting exhibits establish without contradiction that the plaintiff and his co-workers were ordered by the general contractor's foreman to remove excess building materials from the fourteenth floor by way of the hoist tower, and that this foreman knew the ramp which connected the building to the exterior hoist tower was missing. On the basis of this evidence, we find plaintiff has established that the property owner and general contractor violated Labor Law § 240 (1) by failing to furnish or erect scaffolding and other devices on the construction site so as to give proper protection to persons employed thereon. Moreover, in view of the unrefuted evidence that the general contractor's foreman ordered the cleanup to be accomplished via the hoist tower, even in the absence of a safety ramp, the injury to plaintiff was not unforeseeable and, as such, the Labor Law violation was a proximate cause of plaintiff's injury (see, McGurk v. Turner Constr. Co., 127 A.D.2d 526, 528).
We have searched the record and find the proof of Heydt Contracting Corp.'s lack of responsibility with respect to the ramps to be "prima facie sufficient to support [its] application for summary judgment" (Smith v. Johnson Prods. Co., 95 A.D.2d 675, 676). According to the terms of the various subcontract agreements, as well as Heydt Contracting Corp.'s daily field reports and the deposition testimony given by the general contractor's construction superintendent, Mr. Finocchiaro, and Mr. Zepatos of Heydt Contracting Corp., Heydt Contracting Corp. was not responsible for either the construction, maintenance or removal of the ramp in question, and its responsibility applied solely to the hoist towers. Park Avenue Enterprises, Inc., the general contractor who opposes Heydt Contracting Corp.'s summary judgment motion with an attorney's affirmation, has failed to set forth proof in evidentiary form such that would require a trial of a material issue of fact (Smith v. Johnson Prods. Co., supra, at 676-677).
Concur — Ross, J.P., Rosenberger, Kassal, Ellerin and Rubin, JJ.