Elkins v. Robbins Cowan

15 Citing cases

  1. RAE v. CITY OF NEW YORK

    2008 N.Y. Slip Op. 50272 (N.Y. Misc. 2008)

    The elevation risks covered by this statute "are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted" ( Rocovich v Consolidated Edison Co., 78 NY2d 509, 514). In such circumstances, the failure to provide any safety devices at all constitutes a violation of Labor Law § 240 (1) as a matter of law ( see Zimmer v Chemung County Performing Arts, 65 NY2d 513; Elkins v Robbins Cowan, 237 AD2d 404, 405). In the instant matter, it is uncontroverted that plaintiff was required to lower his body through a window cutout in the foundation in order to descend into his work area in the basement.

  2. Rodriguez v. Lupino

    2010 N.Y. Slip Op. 33157 (N.Y. Sup. Ct. 2010)

    It is well settled that an injured worker's contributory negligence is not a defense to a claim based on Labor Law Section 240(1), and that the worker's negligence, if any, does not operate to avoid or reduce the absolute liability of owners and contractors for failing to provide adequate safety devices. Stolt v General Foods Corp., 81 NY2d 918, 920 (1993); Rocovich, supra, 78 NY2d at 513; Bland, supra, 66 NY2d at 459-461; Zimmer, supra, 65 NY2d at 521-522; Elkins v Robbins Cowan, 237 AD2d 404, 406 (2d Dept. 1997); Iannelli v Olympia York Battery Park Co., 190 AD2d 775, 776 (2d Dept. 1993). Labor Law § 240 imposes strict and absolute liability upon owners contractors and the respective agents thereof for to provide proper safety devices.

  3. Reinoso v. Ornstein Layton Management, Inc.

    19 A.D.3d 678 (N.Y. App. Div. 2005)   Cited 46 times

    To establish liability under Labor Law § 240 (1), a plaintiff must demonstrate a violation of the statute and that such violation was a proximate cause of his or her injuries ( see Blake v. Neighborhood Hous. Servs. of N.Y. City, supra at 287-289; Rocovich v. Consolidated Edison Co., supra at 513). The plaintiff established his prima facie entitlement to partial summary judgment on the issue of liability under Labor Law § 240 (1) by demonstrating that he was exposed to elevation-related risks for which no safety devices were provided, and that such failure resulted in his fall and was a proximate cause of his injuries ( see Taeschner v. M M Restorations, 295 AD2d 598; Elkins v. Robbins Cowan, 237 AD2d 404). In opposition, the appellant failed to raise a triable issue of fact.

  4. Danielewski v. Kenyon Realty Co.

    2 A.D.3d 666 (N.Y. App. Div. 2003)   Cited 21 times
    In Danielewski v. Kenyon Realty Co., LLC, 2 AD3d 666 (2003), plaintiff fell 12 feet from a mechanical roof to the main roof surface, while replacing a water tank on a building's roof.

    Thus, contrary to the defendant's contention, the defendant may be liable for the plaintiff's injuries, "`despite the fact that the particular job being performed at the moment plaintiff was injured did not in and of itself constitute construction'" ( Campisi v. Epos Contr. Corp., 299 A.D.2d 4, 6, quoting Covey v. Iroquois Gas Transmission Sys., 218 A.D.2d 197, 199, affd 89 N.Y.2d 952; see O'Connor v. Lincoln Metrocenter Partners, 266 A.D.2d 60; Birbilis v. Rapp, 205 A.D.2d 569). The plaintiff, in support of his motion for summary judgment, established a prima facie case by presenting evidence that no safety devices were provided at the time of the accident ( see Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513). Because the defendant did not raise any triable issue of fact as to this issue, summary judgment was properly granted to the plaintiff ( see Zimmer v. Chemung County Performing Arts, supra at 524; Taeschner v. M M Restorations, 295 A.D.2d 598; Elkins v. Robbins Cowan, 237 A.D.2d 404). The defendant's remaining contentions are without merit.

  5. Taeschner v. M & M Restorations, Ltd.

    295 A.D.2d 598 (N.Y. App. Div. 2002)   Cited 26 times

    The plaintiff, while working on the building's roof, lost his balance and fell about 21 feet to the ground. Labor Law § 240(1) imposes absolute liability upon a contractor or owner who fails to provide safety devices to a worker at an elevated work site where the lack of such devices is a substantial factor in causing that worker's injuries (see Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513). A failure to provide any safety device at all constitutes a statutory violation of Labor Law § 240(1) as a matter of law (see Elkins v. Robbins Cowan, 237 A.D.2d 404). The plaintiff, in support of its motion for summary judgment on the issue of liability against M M, established a prima facie violation of Labor Law § 240(1) by presenting evidence that no safety devices were provided at the time of the accident. M M failed to raise a triable issue of fact as to its liability because there was no evidence that the ladder used by the plaintiff to reach the roof was provided as a safety device (see Elkins v. Robbins Cowan, supra at 405).

  6. Cordero v. Kaiser Organization, Inc.

    288 A.D.2d 424 (N.Y. App. Div. 2001)   Cited 19 times
    In Cordero, the plaintiff was installing an HVAC unit that was suspended from the roof rafters of a building under construction.

    elevation-related risk contemplated by Labor Law § 240(1) (see, Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509). The fact that the plaintiff did not fall completely from the beams does not remove this case from the reach of Labor Law § 240(1) (see, Lacey v. Turner Constr. Co., 275 A.D.2d 734; Robertti v. Powers Chang, 227 A.D.2d 542). Furthermore, liability under Labor Law § 240(1) is not precluded because the beams were a permanent support structure for the building (see, Kaborycha v. Kimmins Indus. Serv. Corp., 243 A.D.2d 687; Aiello v. Rockmor Elec. Enters., 255 A.D.2d 470; Richardson v. Materese, 206 A.D.2d 353). Since the use of the beams was required to install the HVAC unit, Kaiser and Belle were obligated to provide safety devices affording the plaintiff protection from an elevation-related risk (see, Kaborycha v. Kimmins Indus. Serv. Corp., supra; Nieves v. Five Boro Air Conditioning Refrig. Corp., 93 N.Y.2d 914; Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513; Elkins v. Robbins Cowan, 237 A.D.2d 404). Contrary to the Supreme Court's conclusion, the plaintiff's injuries did not result from "a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first instance" (Nieves v. Five Boro Air Conditioning Refrig. Corp., supra, at 916). The risk that the beams could shake "was neither so extraordinary nor so attenuated as to constitute a superceding cause sufficient to relieve [Kaiser and Belle] of liability" (Mooney v. PCM Dev. Co., 238 A.D.2d 487, 488), particularly since the plaintiff was working inside of a building that was under construction (see, deSousa v. Dayton T. Brown, 280 A.D.2d 447).

  7. Duffy v. J. Kokolakis Contracting Inc

    278 A.D.2d 445 (N.Y. App. Div. 2000)

    60 A.D.2d 435). Since the appellant did not proffer a reasonable explanation for having failed to present such testimony in support of its original opposition to the plaintiff's motion, such testimony does not warrant renewal (see, Natale v. Samel Assocs., 264 A.D.2d 384; Guerrero v. Dublin Up Corp. of New York, supra). The testimony of Burke did, however, provide new and additional facts not known or available to the appellant at the time of the original motion and, accordingly, the Supreme Court improvidently exercised its discretion in denying the appellant's motion for renewal based on that testimony (see, Guerrero v. Dublin Up Corp. of New York, supra; Matter of Brooklyn Welding Corp. v. Chin, supra). Nevertheless, the new evidence proffered by the appellant was insufficient to raise a triable issue of fact (see, Weininger v. Hagedorn Co., 91 N.Y.2d 958; Stolt v. General Foods Corp., 81 N.Y.2d 918; Jastrzebski v. North Shore School District, 223 A.D.2d 677, affd 88 N.Y.2d 946; Elkins v. Robbins Cowan, 237 A.D.2d 404). Accordingly, upon renewal, so much of the order dated August 20, 1998, as granted the plaintiff's motion for summary judgment on his cause of action pursuant to Labor Law § 240(1) is adhered to. The Supreme Court properly denied that branch of the appellant's motion which was for summary judgment on its causes of action for contractual and common-law indemnity asserted in its second third-party complaint.

  8. Smith v. Xaverian High School

    270 A.D.2d 246 (N.Y. App. Div. 2000)   Cited 15 times
    Holding that plaintiff established a prima facie case by showing that he was engaged in construction work on a building, that defendant was the general contractor, no safety devices were supplied, and he fell approximately 20 feet from the roof

    ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs. Labor Law § 240(1) imposes a nondelegable duty upon owners and contractors to provide or cause to be furnished certain safety devices for workers on an elevated work site, and the absence of appropriate safety devices constitutes a violation of the statute as a matter of law (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 499-500; Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 520-521; Elkins v. Robbins Cowan, 237 A.D.2d 404). The evidence submitted by the plaintiff established that he was engaged in construction work on a building and that the appellant, T. Moriarty Sons, Inc. (hereinafter Moriarty), was the general contractor. No safety devices were supplied, and he fell approximately 20 feet from the roof.

  9. Lopez v. Tri-State Window Factory Corp.

    2020 N.Y. Slip Op. 34724 (N.Y. Sup. Ct. 2020)

    A prima facie case pursuant to § 240(1) requires the risk of injury from an elevation-related hazard be foreseeable, and that the absent or defective protective device of the type enumerated in the statute was a proximate cause of the injuries alleged (Shipkoski v Watch Case Factory Assocs., 292 A.D.2d 588 [2d Dept 2002]); see Danielewski v Kenyon Realty Co., LLC, 2 A.D.3d 666 [2d Dept 2003] [summary judgment to plaintiff due to the lack of safety devices]). A violation of § 240(1) by failing to provide proper safety devices to workers working within a protected activity is, as a matter of law, a proximate cause of the worker's injuries (Elkins vRobbins & Cowan, Inc., 237 A.D.2d 404 (2dDeptl997).

  10. Phinn v. AJD Constr. Co.

    2020 N.Y. Slip Op. 30716 (N.Y. Sup. Ct. 2020)

    The "absence of appropriate safety devices constitutes a violation of the statute as a matter of law" (Paul v. Village of Quogue, 2019 N.Y. App. Div. LEXIS 9096, *3, 2019 NY Slip Op 09014 [2d Dept., 2019]) and when a safety device is provided, an issue is raised as to whether it constitutes proper protection under the statute. (see Elkins v. Robbins & Cowan, Inc., 237 AD2d 404, 405 [2d Dept., 1997]).