Opinion
716 CA 23-00130
11-17-2023
Joseph CALLOWAY, Plaintiff-Respondent, v. AMERICAN PARK PLACE, INC., and Iron Smoke Whiskey, LLC, Defendants-Appellants.
THE TARANTINO LAW FIRM, LLP, BUFFALO (ANN M. CAMPBELL OF COUNSEL), FOR DEFENDANTS-APPELLANTS. SEGAR & SCIORTINO, ROCHESTER (JASON D. POSELOVICH OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
THE TARANTINO LAW FIRM, LLP, BUFFALO (ANN M. CAMPBELL OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
SEGAR & SCIORTINO, ROCHESTER (JASON D. POSELOVICH OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, BANNISTER, OGDEN, AND NOWAK, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence action seeking damages for an injury that he sustained when he fell while working on a ladder in a building owned by defendant American Park Place, Inc., and leased by defendant Iron Smoke Whiskey, LLC. Plaintiff's employer was a contractor hired to install a new plumbing, heating and cooling system in the building. At the time of the incident, plaintiff and his coworker were removing the original ductwork. The ducts were in long strips, which were first removed from the straps holding them. Plaintiff and his coworker then carried the ducts, while resting them on their shoulders, down their respective ladders. Plaintiff was on his ladder when a duct that was being removed from its straps slipped from his hand, and then hit a wall and then hit plaintiff's ladder, causing the ladder and plaintiff to fall. Plaintiff moved for partial summary judgment on liability on his Labor Law § 240 (1) cause of action, and defendants cross-moved for summary judgment seeking dismissal of the complaint. Supreme Court, inter alia, granted plaintiff's motion and denied defendants’ cross-motion with respect to the Labor Law § 240 (1) cause of action. Defendants now appeal, and we affirm.
Contrary to defendants’ contentions, the court properly granted plaintiff's motion and properly denied defendants’ cross-motion with respect to the Labor Law § 240 (1) cause of action. We conclude that plaintiff met his initial burden on the motion of establishing that the ladder was "not so placed ... as to give proper protection to [him]," and the burden thus shifted to defendants to raise a triable issue of fact whether plaintiff's "own conduct, rather than any violation of Labor Law § 240 (1), was the sole proximate cause of [his] accident" ( Kin v. State of New York , 101 A.D.3d 1606, 1607, 956 N.Y.S.2d 731 [4th Dept. 2012] [internal quotation marks omitted]; see also Woods v. Design Ctr., LLC , 42 A.D.3d 876, 877, 839 N.Y.S.2d 880 [4th Dept. 2007] ; Sniadecki v. Westfield Cent. School Dist. , 272 A.D.2d 955, 955, 708 N.Y.S.2d 209 [4th Dept. 2000] ). Defendants failed to meet that burden. Although defendants’ expert averred that defendants did not violate Labor Law § 240 (1) because plaintiff was provided with a stable ladder that was sufficient for him to safely perform the job, evidence that the ladder was structurally sound and not defective "is not relevant on the issue of whether it was properly placed" ( Fazekas v. Time Warner Cable , Inc. , 132 A.D.3d 1401, 1402, 18 N.Y.S.3d 251 [4th Dept. 2015] [internal quotation marks omitted]). In addition, although plaintiff's coworker testified at his deposition that he believed that the duct fell due to plaintiff's failure to hold it securely and that plaintiff then fell due to his failure to keep his balance, we conclude that such testimony established, at most, contributory negligence on the part of plaintiff (see Miller v. Rerob, LLC , 197 A.D.3d 979, 980, 153 N.Y.S.3d 357 [4th Dept. 2021] ). Because plaintiff established that a statutory violation was a proximate cause of his injury, he "cannot be solely to blame for it" ( Blake v. Neighborhood Hous. Servs. of N.Y. City , Inc. , 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ; see 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] ).
For the same reasons, we conclude that defendants failed to meet their initial burden on their cross-motion with respect to the Labor Law § 240 (1) cause of action (see generally Gonzalez v. Romero , 178 A.D.3d 1401, 1402, 116 N.Y.S.3d 456 [4th Dept. 2019] ).