Opinion
2015-03-24
Thomas PHILLIPS, Plaintiff–Appellant, v. POWERCRAT CORPORATION, et al., Defendants–Respondents. Powercrat Corporation, et al., Third–Party Plaintiffs–Respondents, v. Modern Empire, Inc., Third–Party Defendant.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant. Lewis Johs Avallone Aviles LLP, Islandia (Robert A. Lifson of counsel), for Powercrat Corporation and KMCP, LLC, respondents.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant. Lewis Johs Avallone Aviles LLP, Islandia (Robert A. Lifson of counsel), for Powercrat Corporation and KMCP, LLC, respondents.
O'Connor Redd LLP, Port Chester (Amy L. Fenno of counsel), for Von Rohr Equipment Corp., respondent.
FRIEDMAN, J.P., ANDRIAS, SAXE, RICHTER, GISCHE, JJ.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered on or about April 23, 2014, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for summary judgment against defendant KMCP, LLC on the issue of liability under Labor Law § 240(1), and granted so much of defendants Powercrat Corp. and KMCP's and Von Rohr Equipment Corp.'s motions as sought summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims as against them, unanimously reversed, on the law, without costs, plaintiff's motion granted, and defendants' motions for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims as against them denied.
Plaintiff was injured in a fall from an unsecured ladder while working in a warehouse, where his job was to “clean out, remove machines, break down structures ... and ship them out.” The work included removal of heavy machinery and shelves that ran from floor to ceiling across three second-floor walls, each 50 feet long and 8 feet high, and were bolted to the floors and walls. The breaking down and removing of the shelves required the use of impact wrenches and sawzalls to cut the bolts. Removed materials, including shelving, were heavy, and had to be loaded in cages, which were then lifted by a pallet jack, moved to the edge of the second floor, and lowered to the first floor with a forklift. The dismantling of the shelves was a sufficiently complex and difficult task to render the shelving a “structure” within the meaning of Labor Law §§ 240(1) and 241(6) ( see Kharie v. South Shore Record Mgt., Inc., 118 A.D.3d 955, 988 N.Y.S.2d 654 [2d Dept.2014]; Pino v. Robert Martin Co., 22 A.D.3d 549, 551–552, 802 N.Y.S.2d 501 [2d Dept.2005] ). Moreover, in dismantling the shelving, plaintiff was engaged in “demolition” for purposes of §§ 240(1) and 241(6) ( see Kharie, 118 A.D.3d at 956, 988 N.Y.S.2d 654; Pino, 22 A.D.3d at 552, 802 N.Y.S.2d 501; Medina v. City of New York, 87 A.D.3d 907, 929 N.Y.S.2d 582 [1st Dept.2011]; Industrial Code [12 NYCRR] § 23–1.4[b][16] ).
In opposition to plaintiff's prima facie showing, defendants failed to raise an issue of fact whether plaintiff was the sole cause of his accident ( see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 289 n. 8, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ). There is no evidence that plaintiff received any “immediate and active direction” not to use the ladder, as required to establish a recalcitrant worker defense ( see Balthazar v. Full Circle Constr. Corp., 268 A.D.2d 96, 99, 707 N.Y.S.2d 70 [1st Dept.2000]; Hernandez v. 151 Sullivan Tenant Corp., 307 A.D.2d 207, 762 N.Y.S.2d 603 [1st Dept.2003] ).
We have considered the parties' remaining arguments for affirmative relief and find them unavailing.