The opinion of the court was delivered by: LOUIS STANTON, District Judge
Plaintiff's motion for summary judgment on liability is denied
for the reasons that follow.
Plaintiff, Patrick Caputo, was employed by A & J Heating and
Air Conditioning Services as a service technician in August 2003
when A & J was hired to "evaluate the condition" of the HVAC*fn1 units located at 900
Corporate Boulevard in Newburgh, New York. The building was owned
by defendant Land Holding Inc., a wholly-owned subsidiary of
defendant PNC Bank NA s/h/a PNC Bank. Prudential Serls Commercial
Group, third-party defendant, was the property manager.
In late spring of 2003 PNC Bank was arranging to rent 900
Corporate Boulevard and hired Favino Mechanical Service Inc. to
inspect the HVAC units at the premises and make sure they were in
proper working order. Once Favino submitted a service report, PNC
Bank hired A & J to inspect the units and provide a second
On August 26, 2003, plaintiff and a few other men from A & J
visited the site to assess what work, if any, needed to be
performed on the units. Although the building had a fixed
permanent interior ladder, they set up their own extension ladder
to climb to the roof where some of the units were located.
Plaintiff determined that one of the rooftop units needed to be
serviced and returned the next day with another man to work on
the unit. He again set up his own ladder to climb to the roof.
While he was climbing the ladder it slid out from under him, and
he fell, sustaining injuries. The building's permanent ladder was located within a utility
room. The ladder ran through a hatch in the ceiling of the
utility room to a landing area and continued up to the roof. The
door to the utility room was locked and Thomas LaPerch, the
on-site property manager, was the only person with a key to the
room. The parties disagree about plaintiff's access to that key.
Plaintiff alleges that he asked LaPerch for a key to the
utility room so that he could use the permanent ladder to climb
to the roof, and that LaPerch told him he did not have the key
and could not get it. Plaintiff testified that LaPerch told him
that everyone reached the roof by setting up their own ladder
against the outside wall of the utility room and climbing to the
top of the utility room, where the permanent ladder could then be
used to climb to the roof.
LaPerch testified to the contrary, that he never told anyone to
use a portable ladder to climb to the roof of the utility room to
access the permanent ladder. He denied ever seeing anyone climb
to the roof in that manner. He said that plaintiff never asked
him for a key and denied ever telling anyone that he did not have
the key to the utility room. Caputo sues to recover damages. He moves for summary judgment
on liability, arguing that by not making the permanent ladder
available to him, defendants violated New York Labor Law § 240(1)
as a matter of law.
New York Labor Law § 240(1) states:
All contractors and owners and their agents, except
owners of one and two-family dwellings who contract
for but do not direct or control the work, in the
erection, demolition, repairing, altering, painting,
cleaning or pointing 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.
"[A]n accident alone does not establish a Labor Law § 240(1)
violation or causation. This Court has repeatedly explained that
`strict' or `absolute' liability is necessarily contingent on a
violation of section 240(1)." Blake v. Neighborhood Housing
Services of New York City, 1 N.Y.3d 280, 289 (N.Y. 2003). "Where
an owner or contractor fails to provide any safety devices,
liability is mandated by the statute." Zimmer v. Chemung County
Performing Arts, Inc., 65 N.Y.2d 513, 523 (N.Y. 1985).
Defendants did have a safety device. In the utility room near
the loading dock area was a permanent ladder that began at the ground level and extended all the way up to the
roof. The ladder was an adequate safety device and would have
provided plaintiff with proper protection when he climbed to the
Defendants failed, however, to "furnish" the permanent ladder
"to give proper protection" to plaintiff. Rather than being
available for plaintiff's use, the ladder was locked away in the
utility room and plaintiff did not have, and was not given, a
key. That was a violation of the statute. Mr. LaPerch testified:
Q. The building, the way it is situated today and the
way it was situated in August of '03, how many ways
are there to access the roof?
A. Well, either A through the utility closet to
access the interior ladder or I would assume you
would try to use a ladder if you can't get in.
LaPerch Transcript, 110:22-111:5.
The statutory duty on defendants to furnish a safety device
requires that the device be made available to provide proper
protection for workers. Keeping the ladder inaccessible in a
locked utility room violated that duty, even if the plaintiff had
his own ladder, and could have asked (as he says he did) for a
key to the room. Once that violation occurred, liability
attached. As stated in Blake:
Once the plaintiff makes a prima facie showing the
burden then shifts to the defendant, who may defeat plaintiff's motion for summary judgment only
if there is a plausible view of the evidence enough
to raise a fact question that there was no
statutory violation and that plaintiff's own acts or
omissions were the sole cause of the accident.
1 N.Y.3d at 289 n. 8.
Under Blake, the analysis of proximate cause is broadened to
this extent: when the superior safety device was rendered
inaccessible by the defendant, its absence required plaintiff to
use a substitute. When that substitute failed, the unavailability
of the superior device is regarded as a cause of the injury. This
expresses the purpose of § 240 and the importance of deterring
violations of it, even if a strict analysis at common law would
have viewed the violation as too ...