Opinion
21687 2007.
Decided February 2, 2010.
Jacob Oresky Associates, PLLC, BY: Pollack Pollack Isaac DeCicco, Brian J. Isaac, Esq., New York, New York, Plaintiff attorney.
Kevin P. Westerman, Esq., Cerussi Spring, White Plains, New York, Defendant attorney.
It is ordered that the motion by the City is denied and the motion by plaintiff is granted.
Plaintiff in this negligence/labor law action seeks damages for personal injuries sustained on November 22, 2006, while working at a construction site for nonparty employer KZ V Construction as a driver and asbestos remover. The construction site was a public school known as "Jamaica High School," located in Queens, New York. Nonparty EMB Contracting (EMB) was retained as a general contractor by the New York City School Construction Authority (NYCSCA), to perform improvements on behalf of the owner, the City of New York and the New York City Department of Education. The nature of the work performed by EMB was described by NYCSCA as "flood elimination" work, which included the asbestos abatement work performed by plaintiff's employer. Part of plaintiff's duties was to work with a coworker to prepare a room for asbestos abatement by sealing off the room with a plastic tarp that was secured by nailing it to two-by-four's that were affixed to the walls.
The record indicates that in order to attach the plastic tarps, plaintiff had to work from an elevated height. The workers had to use a ladder to gain access to air ducts that ran across the room, which they used as a elevated platform to secure the plastic tarps. Plaintiff testified as follows: Prior to his accident, plaintiff asked his supervisor, Mr. Emilio Arias, to give him a scaffold to use instead of a ladder but was told that there were no more scaffolds and that he had to use the A-frame ladder that was already in the area. Nor was he allowed to move one of the three existing scaffolds since they were being used by other workers in connection with the decontamination areas. Plaintiff also asked his supervisor if he could use some of the taller extension ladders. Again, he was told that they were being used by other workers in the other areas of the work site. Thus, as directed, plaintiff used an 8-foot A-frame ladder that was already in the room to climb up to the second air duct, situated approximately 10 feet above the floor. From there, plaintiff climbed on top of a third air duct so he could reach the ceiling and secure the plastic tarp covering throughout the room. Plaintiff worked from the air ducts for about 1 ½ to 2 hours, without incident. When it was time for his break, plaintiff called out to his supervisor to have him hold the ladder but the supervisor did not respond and could not be found. Plaintiff then began to kneel on the second air duct and turned his body around so he could climb down the ladder. As he proceeded down, the ladder shifted and plaintiff fell onto the concrete floor below.
Defendants' Motion
Defendants' motion for leave to renew a prior motion to vacate plaintiff's Note of Issue/Certificate of Readiness and, upon renewal for an order removing the case from the Court's trial calendar based upon plaintiff's alleged failure to provide certain discovery is rendered academic by plaintiff's full compliance with the discovery order. As for defendants' claim that they are entitled to discovery pertaining to plaintiff's application for a green card, there is no legal authority for the same. The record indicates that plaintiff is a permanent resident of the United States of America and his green card, a copy of which was provided to defendants, is evidence that he is authorized to live and work in the United States ( see 8 USC § 1324a[b][1][B], [C]). The record further reveals that the green card was originally issued in 2004, as testified to by plaintiff. Plaintiff's Motion
Labor Law § 240(1) provides that "[a]ll contractors and owners and their agents . . . shall furnish or erect, or cause to be furnished or erected . . . 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 [construction workers employed on the premises]" ( see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 499-500). The purpose of this statute, commonly referred to as the "scaffold law," is to "protect[] workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor . . ., instead of on workers, who are scarcely in a position to protect themselves from accident" ( Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520 [internal quotations marks omitted]). In order to prevail on a Labor Law § 240(1) cause of action, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries ( see Blake v Neighborhood Hous. Servs. of NY City , 1 NY3d 280 ; Singh v City of New York, 68 AD3d 1095; Camlica v Ansson, 40 AD3d 796).
Plaintiff established a prima facie case that his injuries resulted from a violation of Labor Law § 240(1), with proof that an unsecured ladder upon which he was standing tipped over, causing him to fall and sustain injuries ( see Yin Min Zhu v Triple L. Group, LLC , 64 AD3d 590 ; Barr v 1575 Ave., LLC , 60 AD3d 796 ; Mingo v Lebedowicz , 57 AD3d 491 . Contrary to defendants' contention, where, as here, the plaintiff alleges that the subject ladder tipped over for no apparent reason, the plaintiff does not have the burden of setting forth evidence that the ladder was defective ( see Panek v County of Albany, 99 NY2d 452, 458; Mingo v Lebedowicz; supra; Ricciardi v Bernard Janowitz Constr. Corp., 49 AD3d 624; Johnson v Flatbush Presbyt. Church , 29 AD3d 862 , 863; Chlap v 43rd St.-Second Ave. Corp. , 18 AD3d 598 ; Loreto v 376 St. Johns Condominium, Inc. , 15 AD3d 454 ; Sztachanski v Morse Diesel Intl., Inc. , 9 AD3d 457 ; Guzman v Gumley-Haft, Inc., 274 AD2d 555). In opposition, defendants failed to raise a triable issue of fact. Accordingly, plaintiff's motion for summary judgment on the issue of liability to recover damages for violation of Labor Law § 240(1), is granted ( see generally Alvarez v Prospect Hosp., 68 NY2d 320).