ARGUMENT POINT I. PLAINTIFF IS ENTITLED TO JUDGMENT AS A MATTER OF LAW UNDER §240. A.
Defendant violated Labor Law §240(1) in failing to protect a worker at an elevation.
1.
The “governing rule” of Labor Law §240(1) is that it “was designed to prevent
those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person.” Runner v. NYSE, 13 N.Y.3d 599, 604, 895 N.Y.S.2d 279, 282 (2009) (emphasis in original). The Court of Appeals has “repeatedly stated that Labor Law §240(1) ‘imposes absolute liability on owners. . .for any breach of the statutory duty which has proximately caused injury.’” Sanatass v. Consolidated Investing Co., Inc., 10 N.Y.3d 333, 858 N.Y.S.2d 67 (2008) (citing Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 559, 606 N.Y.S.2d 127 (1993); Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 289, 8771 N.Y.S.2d 484 [2003]). “[I]t is clear that the statutory duty imposed by this strict liability provision is ‘nondelegable and that an owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control.'” Id. (citing Rocovich v. Con. Ed. Co., 78 N.Y.2d 509, 513, 577 N.Y.S.2d 219 [1991]) (emphasis in original). 2.
“[T]o establish a prima facie violation of Labor Law §240(1) a plaintiff must
establish that ‘the statute was violated and that this violation was a proximate cause of his or her injuries.’” Reinoso v. Ornstein Layton Management, Inc., 19 A.D.3d 678, 798 N.Y.S.2d 95 (2nd Dept. 2005), lv dismissed 5 N.Y.3d 849, 806 N.Y.S.2d 168; Gardner v. New York City Tr. Auth.,
282 A.D.2d 430, 431 (2nd Dept. 2001). “The single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” Runner, 13 N.Y.3d at 603. It is incontrovertible that these facts present exactly this kind of harm. 3.
There is and can be no question of fact that PLOTKIN's injuries were caused by
his fall from an elevation, where he was working without the protection required by statute; if the requisite fall protection had been present and adequate, he would not have fallen. 4.
As detailed in the Affidavit of Plaintiff's expert safety engineer Mr. O'Connor
(Exhibit P), DEAN violated §240 multiple times, including in the failure to provide adequate safety railings and the failure to provide adequate personal fall protection. (See Exhibit P, paras. 15-20). Mr. O'Connor also explains that these violations caused and contributed to Plaintiff's injury, in that they prevented him from arresting his fall after he lost his footing. Id. DEAN'S §240 violations either caused, were a substantial contributing factor to, or worsened PLOTKIN's injuries. 5.
While the question of whether a device provided proper protection is generally
one of fact, the Second Department has explicitly held that this is not the case “when the device collapses, moves, falls, or otherwise fails to support the plaintiff and his materials.” Nelson v. Ciba-Geigy, 268 A.D.2d 570, 572 (2nd Dept. 2000). Rather, under these circumstances summary judgment for plaintiff is warranted. Id.; Estrella v. GIT Indus., Inc., 105 A.D.3d 555 (1st Dept. 2013) (sudden movement of ladder shows prima facie violation of §240); Ball, supra, 36 A.D.3d at 1188 (“where the uncontroverted evidence establishes that the safety device collapsed, slipped or otherwise failed to support him or her, the plaintiff demonstrates a prima facie entitlement to partial summary judgment under Labor Law §240[1]”); Siegel, supra (similar); Monioudis v.
City of New York, 24 Misc. 3d 1248(A), 1248A (Kings Co. 2009) (similar). 6.
Furthermore, DEAN has no defense to this violation. “When the defendant
presents some evidence that the device furnished was adequate and properly placed and that the conduct of the plaintiff may be the sole proximate cause of his or her injuries, partial summary judgment on the issue of liability will be denied because factual issues exist.” Ball, 36 A.D.3d at 1188. But, again, where a safety device shifts or slips, “any alleged contributory negligence attributable to plaintiff is irrelevant. . .and, as the statutory violation has been established as a proximate cause of plaintiff's injury, his negligence cannot be the sole proximate cause.” Id. 7.
Given the clear §240 violation here, the most DEAN could do would be to show
contributory negligence (see, e.g., Fernandez v. BBD Developers, LLC, 103 A.D.3d 554, 555556 [1st Dept. 2013]), which Plaintiff disputes and which at any rate would be “of no consequence.” Rocovich, 78 N.Y.2d at 513. A plaintiff cannot be the sole proximate cause of his own injury where he did not “engage[] in unforeseeable, reckless activities nor misuse[] a safety device that was provided to him,” Beharry v. Public Stor., Inc., 36 A.D.3d 574, 575 (2nd Dept. 2007) (collecting cases) and DEAN has not offered evidence of either of these circumstances. 8.
The testimony of DEAN by its owner, Roizy B., shows that DEAN deliberately
ignored the goings-on at its property where PLOTKIN was working. As described above, Ms. B. never examined her property, never maintained files relative to the building, didn't know about the work being done at the property in July 2009, and didn't know who was responsible for hiring contractors or whether permits had been taken out for that work. When asked why she never made any inquiries about the status of her property, the owner responded that “[she didn't] wanna know.” (R. B. EBT 19). This attempt to hide behind cultivated ignorance is unconscionable, and exemplifies the rationale behind §240's “absolute liability” (see Zimmer, 65
N.Y.2d at 520). The facts require summary judgment for Plaintiff on this claim.
POINT II. DEFENDANT DEAN HAS FAILED TO ESTABLISH PRIMA FACIE ENTITLEMENT TO SUMMARY JUDGMENT. A.
DEAN did not address the initial cause of the plaintiff's fall.
9.
DEAN's argument with respect to §240 rests on the dual premises that it was only
after some unidentified force caused the scaffold to move that any duty arose to provide fall protection, and even then the duty rested with the plaintiff alone. Both premises are false. They ignore the absolute liability that forms the cornerstone of §240, and furthermore, DEAN did not and cannot argue that PLOTKIN's conduct contributed to the proximate cause of his injury, i.e. the scaffold's initial shift. That is, DEAN focuses solely on what happened after PLOTKIN lost his footing, not on what caused him to lose his footing in the first place. This fatal omission prevents DEAN from establishing its entitlement to judgment as a matter of law. 10.
The assumption inherent in DEAN's argument is that there can only be one
proximate cause of a fall from a scaffold, and that this cause rested on the plaintiff. This assumption is rooted in contributory negligence, Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 N.Y.3d 280, 286 (2003) – a doctrine New York law has long since rejected, particularly in the context of Labor Law §240. Dominguez v. Manhattan & Bronx Surface Trans. Op. Auth., 46 N.Y.2d 528, 532 (1979); Blake, supra. Instead of addressing the scaffold's shift, DEAN submits that “a trier of fact could find” that the “sole proximate cause” of plaintiff's fall was his ostensible “fail[ure] to use a safety device readily available. . . . This would have been the harness with lifeline that plaintiff owned and kept in his garage along with other tools.
Plaintiff testified although he took various tools with him to perform the work, he did not take the harness and lifeline to the job on the day of the accident as it remained in his garage” (Cahill Aff. para. 46). 11.
In addition to, remarkably, calling for a trier of fact on a motion for summary
judgment,1 DEAN's arguments suffer from the following deficiencies: 12.
They lack any reference to the testimony. They contradict themselves. They are wrong on the facts. They are wrong on the law.
Contrary to DEAN's claims at para. 46, a review of Plaintiff PLOTKIN's
testimony does not reveal any statement that he left the harness and lifeline in his garage on the day of the accident. Rather, the testimony is that PLOTKIN had a garage that he used for storage (Plaintiff EBT 35-36). Independently of that, he testified that he owned two safety belts and three or four lifelines (Id. at 37). PLOTKIN also testified that he used safety lines on the site (Plaintiff EBT 63-64), as well as safety belts (Id. at 66), and that he was wearing a lifeline at the time he fell (Id. at 79). After claiming that PLOTKIN's safety equipment remained in his garage on the day of the accident, DEAN itself states two paragraphs later that “it is clear from plaintiff's own testimony that he owned a harness with lifeline and that he had it at the jobsite along with other tools that he used for his work” (Cahill Aff. para. 48). The extent to which DEAN has wrongly and inconsistently recited the facts is truly perplexing and casts serious doubt on the papers' overall credibility. 13.
1
DEAN's argument on §240 is also notable for its lack of any substantive analysis.
Cf. Ritt v. Lenox Hill Hosp., 182 A.D.2d 560, 562 (1st Dept. 1992) (“If a movant, in preparation of a motion for summary judgment, cannot assemble sufficient proof to dispel all questions of material fact, the motion should simply not be submitted").
Instead, it hurls a barrage of case law at the Court hoping that something will strike its target, while failing to appreciate that the best it can hope for under its own authority is a question of fact, not a dismissal of Plaintiff's claims. Cf. para. 5, supra. 14.
The problem with DEAN's cases is that they are each premised on the misuse of
equipment that was present, not the failure to provide equipment in the first place. That is, Robinson v. East Med. Ctr., L.P., 6 N.Y.3d 350 (2006), Montgomery v. Fed. Express Corp., 4 N.Y.3d 805 (2005), Blake v. Neighborhood Hous. Serv. of NYC, 1 N.Y.3d 280 (2003), Weininger v. Hagedorn, 91 N.Y.2d 958 (1998), Mayancela v. Almat Realty Dev., LLC, 303 A.D.2d 207 (1st Dept. 2003), and Meade v. Rock-McGraw, Inc., 307 A.D.2d 156 (1st Dept. 2003), each involved the misuse of an approved safety device, i.e. a ladder. Likewise, Allen v. DHL Express (USA) Inc., 99 A.D.2d 828 (2nd Dept. 2012), involved a proper safety device (a scaffold) used improperly, when an appropriate one was immediately available. 15.
Here, on the other hand, DEAN never claims that PLOTKIN “misused” a safety
device. The only defense is that the plaintiff knew safety devices were required and should have supplied adequate devices himself. But that is not what the law requires. Labor Law §240(1) “imposes absolute liability on owners, contractors and their agents for any breach of the statutory duty which has proximately caused injury.” Sanatass, supra, 10 N.Y.3d 333 (emphasis added); Blake, 1 N.Y.3d at 289. 16.
Finally, the sheer flimsiness of DEAN's arguments as to PLOTKIN's status speak
volumes about the meritlessness of its motion. There is zero relevance in the fact that PLOTKIN was an independent contractor or that he brought some tools with him (see Cahill Aff., para. 48), because §240 renders “an owner. . .liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control.”
Sanatass, supra at para. 47; accord PJI Com. 2:217 (2013) (citing Gordon, supra). 17.
Likewise, DEAN stops short of claiming outright that PLOTKIN's acts were those
of a recalcitrant worker, but it is plainly inviting this inference on the part of the Court. DEAN claims that “Plaintiff's failure to secure the harness with lifeline before releasing the wires was clearly for no good reason,” and that “[t]his is not a case of a worker being at a jobsite not having safety devices available to him because. . .his employer did not provide them to him. . . . Plaintiff chose to misuse the lifeline by failing to re-secure it.” But again, this ignores the “absolute liability” ascribed to all owners under §240, Sanatass, supra, which again, attaches regardless of the status of the injured worker relative to the owner, Blake, supra, and it ignores the fact that these steps were necessary for the work DEAN hired PLOTKIN to do. 18.
In refusing to address the shift in the scaffold's position that represented the initial
cause of PLOTKIN's fall and generally ignoring New York's jurisprudence as to Labor Law §240, DEAN fails to show entitlement to summary judgment and its motion should be denied.
POINT III. PLAINTIFF RAISES TRIABLE ISSUES OF FACT REQUIRING THE DENIAL OF DEFENDANT'S MOTION. A.
Questions of fact under §240
19.
The evidence showing a violation of Labor Law §240 has been reviewed above at
paras. 1-8. The evidence shows that, even if this Court does not agree that PLOTKIN is entitled to summary judgment himself, defendant DEAN cannot be awarded this relief. 20.
DEAN's “sole proximate cause” defense is futile. This defense requires a showing
that “the safety devices that plaintiff alleges were absent were readily available at the work site,
albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident.” Gallagher v. New York Post, 14 N.Y.3d 83, 88 (2010) (citing Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39-40, 790 N.Y.S.2d 74 [2004]); see also Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 10 (1st Dept. 2011). There is no evidence here that these criteria were met. 21.
DEAN does not argue that the safety devices PLOTKIN should have used were
present at the site. To the contrary, it claims (albeit without foundation) that the necessary devices “remained in [plaintiff's] garage” on the day of the accident. (Cahill Aff. para. 46.) Since there were no readily available devices, DEAN cannot establish that PLOTKIN knew where to find them, or that he believed he was expected to use them. Finally, DEAN misses the mark completely when it tries to argue PLOTKIN “for no good reason chose not to” use the nonexistent safety devices, insofar as he was required to remove the stabilizing anchors and release his safety line in order to do the work for which DEAN had hired him. (Plaintiff EBT 91; Exhibit P, para. 17). At the very least, PLOTKIN is entitled to have a jury decide whether the steps he took to complete his assigned task contributed to his fall – respectfully, this cannot be decided as a matter of law. 22.
Even assuming only for purposes of argument that the equipment PLOTKIN
provided contributed to the “resultant fall,” this does not establish the proximate cause of the accident, which was the failure to provide an adequate safety device that would not have shifted in the first place. (See, e.g., Exhibit P, paras. 20, 32). As in Moniusko v. Chatham Green, Inc., 3 Misc. 3d 1110(A), 1110A (N.Y. Sup. Ct. 2004), where it was “clear that although the plaintiff, by having voluntarily removed his safety harness, may be largely responsible for the resultant sixteen foot fall and the extent of his injuries, the fact remains that the proximate cause of the
accident� was the failure to provide a requisite safety device. "Because plaintiff established that a statutory violation was a proximate cause of [his] injur[ies], [he] 'cannot be solely to blame for it.'" Calderon v. Walgreen Co., 72 A.D.3d 1532, 1533 (4th Dept. 2010) (citing Woods v. Design Ctr., LLC, 42 A.D.3d 876, 877, 839 N.Y.S.2d 880 [2007]). Summary judgment under this provision must be denied.