Opinion
2018–02922 Index No. 1649/15
01-30-2019
Cristian VICUNA, Respondent, v. VISTA WOODS, LLC, et al., Appellants. (and a Third-Party Action)
The Chartwell Law Offices, LLP, White Plains, N.Y. (Carmen A. Nicolaou of counsel), for appellants Vista Woods, LLC, and Ruby Construction Services, LLC. Kenney Shelton Liptak Nowak, LLP, White Plains, N.Y. (Lori B. Lewis of counsel), for appellant Builders Choice of New York, Inc. Finkelstein & Partners, LLP, Newburgh, N.Y. (George M. Levy of counsel), for respondent.
The Chartwell Law Offices, LLP, White Plains, N.Y. (Carmen A. Nicolaou of counsel), for appellants Vista Woods, LLC, and Ruby Construction Services, LLC.
Kenney Shelton Liptak Nowak, LLP, White Plains, N.Y. (Lori B. Lewis of counsel), for appellant Builders Choice of New York, Inc.
Finkelstein & Partners, LLP, Newburgh, N.Y. (George M. Levy of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, JEFFREY A. COHEN, LINDA CHRISTOPHER, JJ.
DECISION & ORDERORDERED that the order is affirmed, with one bill of costs payable by the appellants appearing separately and filing separate briefs.
On October 22, 2013, while employed by third-party defendant Vicuna Construction, Inc. (hereinafter Vicuna Construction), the plaintiff allegedly was injured when he fell from a ladder. At the time of the accident, the plaintiff was performing roofing work on a newly-constructed house owned by the defendant Vista Woods, LLC (hereinafter Vista Woods). Vista Woods contracted with the defendant Ruby Construction Services, LLC (hereinafter Ruby Construction), to be the general contractor for the project, which subcontracted with the defendant Builder's Choice of New York, Inc. (hereinafter Builders Choice), to perform the roofing work, which in turn subcontracted the roofing work to Vicuna Construction.
The plaintiff commenced this action against Vista Woods, Ruby Construction, and Builders Choice, alleging violations of Labor Law §§ 200, 240(1), and 241(6), and common-law negligence. The plaintiff moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). The Supreme Court granted the plaintiff's motion.
Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites (see McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 374, 929 N.Y.S.2d 556, 953 N.E.2d 794 ; Alvarez v. Vingsan L.P., 150 A.D.3d 1177, 1179, 57 N.Y.S.3d 160 ; Esteves–Rivas v. W2001Z/15CPW Realty, LLC, 104 A.D.3d 802, 803, 961 N.Y.S.2d 497 ). "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" ( Allan v. DHL Express [USA], Inc., 99 A.D.3d 828, 833, 952 N.Y.S.2d 275 ; see Berg v. Albany Ladder Co., Inc., 10 N.Y.3d 902, 904, 861 N.Y.S.2d 607, 891 N.E.2d 723 ; Alvarez v. Vingsan L.P., 150 A.D.3d at 1179, 57 N.Y.S.3d 160 ; Lopez–Dones v. 601 W. Assoc., LLC, 98 A.D.3d 476, 949 N.Y.S.2d 165 ).
We agree with the Supreme Court's determination to grant the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). The plaintiff made a prima facie showing of entitlement to judgment as a matter of law through his deposition testimony, demonstrating that the ladder on which he was working shifted for no apparent reason, causing him to fall (see Cabrera v. Arrow Steel Window Corp., 163 A.D.3d 758, 82 N.Y.S.3d 444 ; Alvarez v. Vingsan L.P., 150 A.D.3d at 1179, 57 N.Y.S.3d 160 ; see Alvarez v. Vingsan L.P., 150 A.D.3d at 1179, 57 N.Y.S.3d 160 ; Goodwin v. Dix Hills Jewish Ctr., 144 A.D.3d 744, 747, 41 N.Y.S.3d 104 ; Baugh v. New York City Sch. Constr. Auth., 140 A.D.3d 1104, 1105, 33 N.Y.S.3d 472 ; Ocana v. Quasar Realty Partners, L.P., 137 A.D.3d 566, 567, 27 N.Y.S.3d 530 ). In opposition, the defendants failed to raise a triable issue of fact (see Cabrera v. Arrow Steel Window Corp., 163 A.D.3d at 759–760, 82 N.Y.S.3d 444 ; Alvarez v. Vingsan L.P., 150 A.D.3d 1177, 1179, 57 N.Y.S.3d 160 ; Pacheco v. Halsted Communications, Ltd., 144 A.D.3d 768, 769, 40 N.Y.S.3d 568 ; Goodwin v. Dix Hills Jewish Ctr., 144 A.D.3d at 747, 41 N.Y.S.3d 104 ; Ricciardi v. Bernard Janowitz Constr. Corp., 49 A.D.3d 624, 625, 853 N.Y.S.2d 373 ; cf. Scofield v. Avante Contr. Corp., 135 A.D.3d 929, 931, 24 N.Y.S.3d 376 ).
SCHEINKMAN, P.J., DILLON, COHEN and CHRISTOPHER, JJ., concur.