Opinion
2013-03-6
Nube GODOY, respondent, v. NEIGHBORHOOD PARTNERSHIP HOUSING DEVELOPMENT FUND COMPANY, INC., et al., defendants, Crest Contracting, Inc., defendant third–party plaintiff; 2R Construction Corporation, third–party defendant–appellant.
Cascone & Kluepfel, LLP, Garden City, N.Y. (Ajay C. Bhavnani of counsel), for third–party defendant–appellant. Larry Dorman, P.C., Astoria, N.Y. (Michael S. Murphy of counsel), for respondent.
Cascone & Kluepfel, LLP, Garden City, N.Y. (Ajay C. Bhavnani of counsel), for third–party defendant–appellant.Larry Dorman, P.C., Astoria, N.Y. (Michael S. Murphy of counsel), for respondent.
, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, the third-party defendant appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated January 30, 2012, as 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), and denied that branch of its cross motion which was for summary judgment dismissing that cause of action.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting 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), and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff was a demolition worker employed by the third-party defendant to work on a demolition project. While picking up demolition debris on the first floor of a building, the plaintiff allegedly sustained injuries when the floor collapsed beneath her, and she fell to the floor of the basement below. The plaintiff subsequently commenced this action, alleging, inter alia, a violation of Labor Law § 240(1), and moved for, among other things, summary judgment on the issue of liability on that cause of action. The third-party defendant, among others, cross-moved, inter alia, for summary judgment dismissing that cause of action.
Labor Law § 240(1) imposes a nondelegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks ( see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82;Barr v. 157 5 Ave., LLC, 60 A.D.3d 796, 875 N.Y.S.2d 228). “To impose liability pursuant to Labor Law § 240(1), there must be a violation of the statute and that violation must be a proximate cause of the plaintiff's injuries” ( Tama v. Gargiulo Bros., Inc., 61 A.D.3d 958, 960, 878 N.Y.S.2d 128;see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287, 771 N.Y.S.2d 484, 803 N.E.2d 757). “Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1)” ( Treu v. Cappelletti, 71 A.D.3d 994, 997, 897 N.Y.S.2d 199).
Here, the plaintiff demonstrated, prima facie, her entitlement to judgment as a matter of law on the issue of liability pursuant to Labor Law § 240(1) by submitting evidence that the floor where her accident occurred was unstable and that she was not provided with any safety devices despite the potential elevation risks involved ( see Robertti v. Powers Chang, 227 A.D.2d 542, 543, 642 N.Y.S.2d 715;see generally Balladares v. Southgate Owners Corp., 40 A.D.3d 667, 669–670, 835 N.Y.S.2d 693).
However, in opposition, the third-party defendant raised a triable issue of fact by submitting an affidavit of its co-owner, who was supervising the work site at the time of the plaintiff's accident. In his affidavit, the co-owner stated that the area where the plaintiff fell had been cordoned off because the floor was unstable, and, moreover, that he had specifically told the plaintiff several times not to enter the restricted area; the last time he told her was 30 minutes before the accident. Accordingly, a triable issue of fact exists as to whether the plaintiff's actions were the sole proximate cause of her alleged injuries ( see John v. Klewin Bldg. Co., Inc., 94 A.D.3d 1502, 1503–1504, 943 N.Y.S.2d 812;Serrano v. Popovic, 91 A.D.3d 626, 627–628, 936 N.Y.S.2d 254). Therefore, the Supreme Court should have denied 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).
Nevertheless, the Supreme Court properly denied that branch of the third-party defendant's motion which was for summary judgment dismissing that cause of action. During her deposition, the plaintiff denied that an area of the work site had been cordoned off and that she had been warned not to enter. Thus, the trier of fact could draw conflicting inferences as to how the accident actually occurred, precluding an award of summary judgment to the third-party defendant ( see John v. Klewin Bldg. Co., Inc., 94 A.D.3d at 1503–1504, 943 N.Y.S.2d 812;see also Delahaye v. Saint Anns School, 40 A.D.3d 679, 680, 836 N.Y.S.2d 233;Becovic v. Scoria & Diana Assoc., Inc., 12 A.D.3d 388, 783 N.Y.S.2d 831;Reborchick v. Broadway Mall Props., Inc., 10 A.D.3d 713, 781 N.Y.S.2d 899).