Rattley v. Chelsea 27th St. Apts., LLC

Full title: DARRYL RATTLEY, v. CHELSEA 27TH STREET APARTMENTS, LLC, GOTHUM…

Court: Supreme Court of the State of New York, New York County

Date published: Aug 16, 2007

2007 N.Y. Slip Op. 32587 (N.Y. Sup. Ct. 2007)

Opinion

0107112/2005.

August 16, 2007.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MILTON A. TINGLING.

The following papers, numbered 1 to were read on this motion to/for

PAPERS NUMBERED Notice of Motion/ Order to Show Cause — Affidavits — Exhibits ... Answering Affidavits — Exhibits Replying Affidavits Cross-Motion: [ ] Yes [ ] No

Upon the foregoing papers, it is ordered that this motion

Plaintiff, Darryl Rattley, is seeking partial summary judgment on the issue of liability pursuant to labor law § 240(1) arguing the scaffold was defective and Plaintiff was not provided with any safety devices. Defendants, Chelsea 27^th Street Apartments, LLC, Gotham Construction Company and Gotham Construction, LLC ("Gotham"), contend there is a triable issue of fact as to whether any of the defects in the scaffold were the proximate cause of the accident. Plaintiff's motion for partial summary judgment on the issue of liability is granted.

At the time of the accident, Plaintiff was a bricklayer employed by DelSavio Construction Company. The site where Plaintiff was working was owned by co-defendant Chelsea 27^th Street Apartments LLC and co-defendant Gotham Construction Company LLC was the contractor. While Plaintiff was working on the scaffold, the scaffold shifted causing plaintiff to fall ten feet to the ground. As a result of the accident, Plaintiff sustained personal injuries. The scaffold hung from the side of the building and the working platform of the scaffold consisted of planks. The back of the platform had a rail but there were no railings, barriers or other protective devices to the right or to the left of the platform.

Plaintiff contends the scaffold was defective in that it did not have side guardrails at both ends of the scaffold, it did not extend the complete length of the wall on the right side where Plaintiff fell from, and the scaffold was not tied off to the wall, thereby causing the scaffold to be unsteady and to move while Plaintiff was working on it. Plaintiff, in his deposition, testified he was never given any harness, safety device, safety belt, or any other fall protection. Gotham argues that there is no evidence that they were the "contractor" working at the site. Gotham further argues that Plaintiff "stepped off" the scaffold as opposed to falling off and thus a triable issue exists as to whether or not the defects in the scaffold were the proximate cause of Plaintiff's injuries. Gotham has not disputed Plaintiff's testimony regarding the various defects in the scaffold.

Section 240 (1) of the Labor Law states that all contractors and owners and their agents. . . who contract for but do not direct or control the work, in the erection. . . repairing, altering. . . of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed. It is undisputed that Plaintiff was employed as a Bricklayer at the construction site. Exhibit A of Plaintiff's reply affirmation entitled "Construction Agreement" lists Chelsea 27^th Street Apartments LLC as the owner of the site and Gotham Construction Company, LLC, as Contractor of the site. Plaintiff has established a prima facie showing that Gotham defendants are subject to liability pursuant to Labor Law 240(1).

As the uncontradicted evidence establishes that plaintiff was injured, at least in part, due to the failure of defendant to provide adequate safety devices to secure the ladder on which he was working, and since the risk created by such failure is one that it is covered by the statute (i.e., falling), plaintiffs have established a violation of Section 240(1) as a matter of law." Montalvo v. J. Petrocelli Const., Inc., 8 A.D.3d 173, 175 (1^st Dept. 2004). As in the Montalvo case, there is uncontradicted evidence that the scaffold was defective, Plaintiff was never given any safety equipment, and Plaintiff suffered injuries as a result of his fall. By failing to provide adequate safety devices to secure the scaffold on which Plaintiff was working, Defendant's created a risk of Plaintiff falling which is covered by the Labor Law Statute 240. Thus Plaintiff has established a violation of Section 240(1) as a matter of law.

It is well settled that the failure to properly secure a ladder, to ensure that it remain steady and erect while being used, constitutes a violation of Labor Law § 240(1). See Schultze v. 585 West 214th Street Owners Corp., 228 A.D.2d 381 (1^st Dept. 1996). Although Defendant claims Plaintiff "Stepped off" the scaffold, the scaffold was not secured in any manner prior to the accident. Furthermore, no safety harness or safety equipment was made available to Plaintiff before and during the accident. Thus defendants failure to properly secure the scaffold constitutes a violation of Labor Law S240(1).

Defendants claim that Plaintiff stepping off creates an issue of fact in dispute as to proximate cause. Again, uncontested by Defendant, Plaintiff testified that the scaffold was two feet shorter than the length of the wall on the right side where he fell off from. Whether or not plaintiff may have stepped off the scaffold or fell off, the scaffold was never secured in the first place and no safety equipment was provided to Plaintiff. "Whether the ladder slipped on its own, or the platform against which it leaned, or may have even been secured, slipped or gave way, makes no difference with respect to defendants' liability. Defendants were obligated to ensure that the ladder was secured to something stable." See Gordon v. Eastern Ry. Supply, Inc., 82 N.Y.2d 555 (1^st Dept. 1993). Thus, Defendants failure to secure the scaffold and provide safety equipment to Plaintiff was the proximate cause of the injuries he suffered as a result of the accident.

Absolute liability is imposed on an owner or contractor for failing to provide or erect safety devices necessary to give proper protection to a worker who sustains injuries proximately caused by that failure. See Zimmer v. Chemung County Performing Arts, Inc, 65 N.Y.2d 513 (1^st Dept. 1985). When the evidence establishes the absence of any safety devices at the worksite, the statute's clear dictates have not been met. Id. Defendants have not contested Plaintiffs testimony that no safety devices were provided nor have they submitted evidence showing that safety devices were provided. Therefore, Absolute liability is imposed on all Defendants.

Accordingly, Plaintiff's motion for partial summary judgment on liability pursuant to Labor Law § 240(1) is granted.