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Cherry v. Time Warner

NEW YORK SUPREME COURT, APPELLATE DIVISION First Judicial Department


August 18, 2009

PATRICK CHERRY, PLAINTIFF-RESPONDENT-APPELLANT,
v.
TIME WARNER, INC., ETC., ET AL., DEFENDANTS-APPELLANTS-RESPONDENTS,
"JOHN DOE," ETC., ET AL., DEFENDANTS.

Cross appeals from an order of the Supreme Court, New York County (Edward H. Lehner, J.), entered November 28, 2007, which denied plaintiff's motion for partial summary judgment as to liability on his Labor Law § 240(1) cause of action, denied defendants' cross motion for summary judgment dismissing the Labor Law § 240(1) claim, and granted plaintiff's cross motion for leave to amend the complaint to allege a cause of action under Labor Law § 241(6).

The opinion of the court was delivered by: Catterson, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Angela M. Mazzarelli, J.P., James M. Catterson, James M. McGuire, Rolando Acosta, Dianne T. Renwick, JJ.

101464/06

This action arises out of a claimed violation of Labor Law § 240(1). The plaintiff alleges that he was not provided with an adequate safety device, a guardrail, while working on a scaffold at the Time Warner Center on Columbus Circle. The plaintiff further alleges that, as a result, he fell off the scaffold and was seriously injured.

The undisputed facts are that on July 28, 2003, the plaintiff was an employee of subcontractor New England Construction Company (hereinafter referred to as "NEC") which was contracted to work at the CNN studios, between the third and eleventh floors of the 80-story building. The defendant Time Warner, Inc. is the owner of the building; the defendant Turner Construction Company was the general contractor of the construction project. On the day of the accident, the plaintiff was securing sheet rock to the ceiling on the third floor when he fell off a baker's scaffold onto the concrete floor eight feet below. The scaffold measuring approximately two feet wide by six to eight feet long had guardrails on only two of its four sides.

The plaintiff commenced this action in February 2006, and subsequently moved for summary judgment alleging that the scaffold from which he fell was the only scaffold chained to the workers' gang box on the third floor that day; that the scaffold lacked appropriate guardrails, and that he was not provided with any other safety devices to protect him from falling. He further alleged that he did not see any scaffolds with guardrails on the date of his accident, and that he was not instructed, at any time, that he should use only scaffolds with railings.

The defendants opposed plaintiff's motion, and cross-moved for summary judgment seeking dismissal of plaintiff's section 240(1) cause of action. They alleged that the plaintiff was instructed not to use scaffolds without guardrails at elevations above four feet; that the NEC provided weekly safety meetings reiterating this rule; that scaffolds with railings were available to workers at all times; that it was NEC's practice to set up each scaffold and that they would always remain assembled through the project, and that the plaintiff was shown how to install guardrails and where to find them. The defendants also pointed to the plaintiff's deposition testimony in which he claimed that he had seen scaffolds with guardrails on the third floor and on other floors prior to the date of his accident. The defendants asserted that, therefore, the plaintiff was the sole proximate cause of his injuries. The plaintiff then cross moved to amend his complaint to include a Labor Law § 241(6) cause of action pursuant to CPLR 3025(b) and (c).

Supreme Court denied both parties' motions for summary judgment holding that a triable issue of fact exists as to whether safety guardrails were in place on the scaffold from which the plaintiff fell, and if they were not in place, whether they were made readily available on site for the plaintiff's use.

For the reasons set forth below, we affirm the motion court's decision. It is well established that there is a statutory duty for contractors and owners to provide adequate safety devices for their workers. Labor Law § 240(1) provides in pertinent part: "All contractors and owners and their agents[...]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 erectedfor 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" (emphasis supplied).

The failure to provide safety devices constitutes a per se violation of the statute and subjects owners and contractors to absolute liability, as a matter of law, for any injuries that result from such failure since workers " are scarcely in a position to protect themselves from accident.'" Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 520, 493 N.Y.S.2d 102, 105, 482 N.E.2d 898, 901 (1985), quoting Koenig v. Patrick Constr. Co., 298 N.Y. 313, 318, 83 N.E.2d 133, 135 (1948). Therefore, the statute should " be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed.'" Zimmer, 65 N.Y.2d at 521, 493 N.Y.S.2d at 105 quoting Quigley v. Thatcher, 207 N.Y. 66, 68, 100 N.E. 956, 956 (1912).

In order for a plaintiff to demonstrate entitlement to summary judgment on an alleged violation of Labor Law § 240(1), he must establish that there was a violation of the statute, which was the proximate cause of the worker's injuries. Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289, 771 N.Y.S.2d 484, 489-490, 803 N.E.2d 757, 762-763 (2003).

However, if adequate safety devices are provided and the worker either chooses not to use them or misuses them, then liability under section 240(1) does not attach. Robinson v. East Med. Ctr., LP, 6 NY3d 550, 554, 814 N.Y.S.2d 589, 591, 847 N.E.2d 1162, 1165 (2006); Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40, 790 N.Y.S.2d 74, 76, 823 N.E.2d 439, 441 (2004). Hence, in determining whether there is a violation of Labor Law § 240(1), or whether a worker is the sole proximate cause of his injuries, the issue to be addressed first is whether adequate safety devices were provided, "furnished" or "placed" for the worker's use on the work site.

In Zimmer, the Court of Appeals was unequivocal as to what constituted the duty of an owner or contractor to "furnish or erect or cause to be furnished or erected" safety devices which "shall be so constructed, placed and operated as to give proper protection" in the performance of labor described in the statute. In that case, the Court held, "[t]he mere presence of ladders or safety belts somewhere at the worksite does not establish proper protection.'" Zimmer, 65 N.Y.2d at 524, 493 N.Y.S.2d at 107 (emphasis added).

In more recent decisions, however, the Court has seemingly diluted this unequivocal stance to a point where it is possible to believe, as the dissent apparently does, that the statutory obligation of a contractor or owner to provide safety devices must be matched by an obligation on the part of the worker to exhibit a "normal and logical response" to search for the safety devices at the work site. Montgomery v. Federal Express Corp., 4 NY3d 805, 806, 795 N.Y.S.2d 490, 491, 828 N.E.2d 592, 593 (2005); Robinson v. East Med. Ctr., LP, 6 NY3d at 554, 814 N.Y.S.2d at 591; Miro v. Plaza Constr. Corp., 38 AD3d 454, 834 N.Y.S.2d 36 (1st Dept. 2007), modified, 9 NY3d 948, 846 N.Y.S.2d 76, 877 N.E.2d 294 (2007). Indeed, in the instant case, the dissent suggests the obligation on the part of the worker to search for a scaffold with a guardrail existed even though the work site occupied eight entire floors of the building.

A closer analysis of the cases on which the dissent relies, however, demonstrates that the Court of Appeals did not intend and could not have intended to provide support for such a lax statutory interpretation. First, the phrase "normal and logical" as it pertains to a worker's response to the lack of a safety device appears to have landed within the lexicon of Labor Law § 240(1) by sheer happenstance. It first appeared in Montgomery v. Federal Express Corp. (307 A.D.2d 865, 866, 763 N.Y.S.2d 600, 601, aff'd, 4 NY3d 805, 795 N.Y.S.2d 490, 828 N.E.2d 592 (2005)), where this Court found a worker to be the sole proximate cause of his injuries for using an inverted bucket rather than a ladder to gain access to a motor room after a stairway leading to it had been removed. This Court held that approaching the motor room and seeing no stairway "[a]t that point, the normal and logical response would have been to go and get a ladder or other appropriate safety device to gain access to the motor room." Montgomery, 307 A.D.2d at 866, 763 N.Y.S.2d at 601. The six-paragraph decision was devoid of any reference whatsoever as to the proximity or availability of ladders or any other safety devices at the site.

The Court of Appeals, nevertheless, affirmed as follows: "We agree with the Appellate Division that, since ladders were readily available, plaintiff's normal and logical response' should have been to go get one." Montgomery, 4 NY3d at 806, 795 N.Y.S.2d at 491 (emphasis supplied).

The Court repeated the language and the rationale a year later again to find a worker the sole proximate cause of his injuries. This time, the Court found sole proximate cause in the worker's failure to replace his six-foot ladder with an eight-foot ladder more suited for the job. Robinson, 6 NY3d at 554-555, 814 N.Y.S.2d at 591-592. The Court cited to its determination in Montgomery and summarized the facts of that case as follows: "Ladders were available at the job site, albeit not in the immediate vicinity [...] Citing Blake, we noted that since ladders were readily available, plaintiff's normal and logical response should have been to go get one.'" Id., at 554, 814 N.Y.S.2d at 591.

While in Montgomery the Court gave no indication as to what might be considered "readily" available, in Robinson, on the other hand, the Court's narrative included the facts that the worker knew there were eight-foot ladders on the job site and "knew what part of the garage [they] were in." Id. at 553, 814 N.Y.S.2d at 590. Further, its decision included the worker's testimony that, "I knew where the tools are located. It's a practice of help yourself [...] you just grab a ladder and do the job." Id. at 553, 814 N.Y.S.2d at 590. Hence, the Court concluded that the eight-foot ladder was readily available because "there were eight-foot ladders on the job site, [the worker] knew where they were stored, and [...] he routinely helped himself to whatever tools he needed rather than requesting them." Id. at 554-555, 814 N.Y.S.2d at 591-592.

Most recently in Miro v. Plaza Constr. Corp. (38 AD3d 454, 834 N.Y.S.2d 36 (1st Dept. 2007), modified, 9 NY3d 948, 846 N.Y.S.2d 76, 877 N.E.2d 294 (2007), supra) this Court reiterated the requirement of ready availability of safety devices. In that case, the plaintiff testified that when a ladder was defective, he could request another ladder from the defendant, which the defendant was "pretty good" at providing from its stockroom. Miro, 38 AD3d at 455, 834 N.Y.S.2d at 37. The Court of Appeals, however, modified the determination of this Court where we found that the plaintiff's "normal and logical response" should have been to request another ladder since the defendant had "a lot of ladders" available at its projects. Miro, 9 NY3d at 949, 846 N.Y.S.2d at 76. The Court held that characterization was insufficient to establish that the ladders were readily available, and thus that a triable issue of fact existed because "[a]ssuming that the ladder was unsafe, it is not clear from the record how easily a replacement ladder could have been procured." Id. at 949; 846 N.Y.S.2d at 76 (emphasis added).

In essence, while the Court has not effectively defined readiness or ease of availability, the Robinson decision indicates that the requirement of a worker's "normal and logical response" to get a safety device rather than having one furnished or erected for him is limited to those situations when workers know the exact location of the safety device or devices and where there is a practice of obtaining such devices because it is a simple matter for them to do so. The dissent's observation does not reflect any such factors in this case. Indeed, the critical observation that "there is no evidence that plaintiff looked beyond his immediate work location,' i.e. the third floor" is predicated on the assumption that the plaintiff had an obligation to search all eight floors because he had seen scaffolds with guardrails somewhere on the job site prior to the day of the accident.

This is precisely the standard that the Zimmer Court rejected. Moreover, it is not the standard enunciated either in Montgomery or Robinson. It is highly unlikely that the availability of a scaffold with guardrails on a different floor would qualify as "ready" or "easy" availability. However, that question is not before us, since the record in this case does not establish exactly where such scaffolds were to be found on the day of the accident. To the extent that the statements and testimony of the plaintiff and the defendants conflict as to where the scaffolds with guardrails were located that day, they raise a triable issue of fact, and so preclude summary judgment.

Lastly, we find the motion court properly granted the plaintiff leave to amend his complaint since the defendants are not prejudiced by the proposed amendments which do not add any new factual allegations. See McQuaig v. Olympia & York 125 Broad St. Co., 247 A.D.2d 273, 668 N.Y.S.2d 614 (1st Dept. 1998).

Accordingly, the order of the Supreme Court, New York County (Edward H. Lehner, J.), entered November 28, 2007, which denied plaintiff's motion for partial summary judgment as to liability on his Labor Law § 240(1) cause of action, denied defendants' cross motion for summary judgment dismissing the Labor Law § 240(1) claim, and granted plaintiff's cross motion for leave to amend the complaint to allege a cause of action under Labor Law § 241(6), should be affirmed, without costs.

All concur except McGuire, J. who dissents in an Opinion.

McGUIRE, J. (dissenting)

I disagree with the majority that a triable issue of fact exists with respect to whether plaintiff's actions were the sole proximate cause of his injuries. In my view, Montgomery v Federal Express Corp. (4 NY3d 805 [2005]) and Robinson v East Medical Center (6 NY3d 550 [2006]) control this appeal and require that plaintiff's Labor Law § 240(1) cause of action be dismissed. Accordingly, I respectfully dissent.

Plaintiff was hired by defendant New England Construction Company to perform carpentry work on a project on which New England was a subcontractor. On the morning of the incident giving rise to this litigation, plaintiff was working on the third floor of the project installing sheet rock in the ceiling. To perform this task, plaintiff was standing on a six-foot baker's scaffold that had guardrails on the front and back portions of the platform but lacked rails on its sides. Plaintiff obtained the scaffold from an area on the third floor near the workers' gang box; it was the only scaffold on the third floor. As plaintiff was screwing a piece of sheet rock into the ceiling, he stepped off one of the unguarded ends of the scaffold and fell to the floor below.

Plaintiff commenced this Labor Law § 240(1) action against, among others,*fn1 the owner of the property and the general contractor, and sought summary judgment on the issue of liability. Plaintiff argued that defendants failed to provide him with a scaffold with guardrails on all four sides of the platform, that their failure to do so was a violation of their duty under section 240(1) to provide him with an adequate safety device, and that the absence of an adequate safety device caused his injuries. Defendants cross-moved for summary judgment dismissing the complaint as against them on the ground that plaintiff's conduct was the sole proximate cause of his injuries. Specifically, defendants asserted that scaffolds with proper guardrails, i.e., guardrails on all four sides of the platform, were available on the job site; plaintiff knew scaffolds with proper guardrails were available on the job site; plaintiff, for no good reason, failed to use a scaffold with proper guardrails; and plaintiff's accident would not have happened had he used a scaffold with proper guardrails. Plaintiff then cross-moved for leave to amend his complaint to assert a cause of action under Labor Law § 241(6); the regulatory predicate of that cause of action is 12 NYCRR 23-5.18(b), which prescribes the type of safety railings required on manually-propelled mobile scaffolding. Supreme Court denied the competing motions for summary judgment and granted plaintiff's cross motion for leave to amend his complaint. Plaintiff appeals from that aspect of the order denying his motion for summary judgment, and defendants cross appeal from those aspects of the order denying their motion for summary judgment and granting plaintiff's cross motion for leave to amend.

A defendant cannot be held liable under Labor Law § 240(1) where the worker's actions were the "sole proximate cause" of the worker's injuries (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290 [2003]). As noted above, two recent "sole proximate cause" cases decided by the Court of Appeals control this appeal -- Montgomery and Robinson.

In Montgomery, the plaintiff and his supervisor were assigned to do work in an elevator motor room, which was located four feet above the roof level of the building in which they were working. The plaintiff and his supervisor went to the roof and found that the stairs that had previously led from the roof to the motor room had been removed. There was no ladder in the immediate vicinity, but ladders were available at the job site. Rather than leaving the roof and retrieving a ladder from elsewhere on the job site, the plaintiff and his supervisor climbed to the motor room by standing on an inverted bucket that the plaintiff had found. After finishing the task, the plaintiff's supervisor jumped down to the roof without incident; the plaintiff also jumped but injured his knee in the process. Affirming an order of the Appellate Division dismissing the plaintiff's Labor Law § 240(1) claim, the Court of Appeals stated that, "[w]e agree with the Appellate Division that, since ladders were readily available, plaintiff's normal and logical response' should have been to go get one. [The] [p]laintiff's choice to use a bucket to get up, and then to jump down, was the sole cause of his injury, and he is therefore not entitled to recover under Labor Law § 240(1)" (4 NY3d at 806, citing Blake, supra).

In Robinson, the plaintiff, working in a building that was under construction, was using a six-foot ladder to install components of pipe hanging systems onto overhead structural beams. The ladder was sufficient to allow the plaintiff to perform safely his task in a hallway; however, when the plaintiff moved from the hallway into an office he observed that the structural beams were at a height of 12-to-13 feet from the floor, a height greater than in the hallway. Nevertheless, the plaintiff stood on the top cap of the six-foot ladder and continued with his work. As he was using a wrench to tighten a clamp to the top of a beam, the plaintiff lost his balance and sustained back injuries in the process of steadying the tipping ladder. According to the plaintiff, a couple of hours before the incident he had asked his foreman for an eight-foot ladder and the foreman replied "I'll see if I can get you one." The foreman did not supply the plaintiff with an eight-foot ladder prior to the incident. The plaintiff, however, knew that there were eight-foot ladders on the job site and knew where they were stored. Supreme Court granted the plaintiff partial summary judgment on the issue of liability on his section 240(1) claim, but the Appellate Division reversed and dismissed that claim on the ground that the plaintiff did not fall from a height, but rather sustained injuries in the process of steadying the ladder (17 AD3d 1027 [2005]).

The Court of Appeals affirmed the dismissal of the section 240(1) claim but on a different basis. The Court determined that the plaintiff's conduct was, as a matter of law, the sole proximate cause of his injuries. The Court noted that "plaintiff knew that he needed an eight-foot ladder in order to screw the rods into the clamps once he left the hallway and entered the office suite. He acknowledges that there were eight-foot ladders on the job site, that he knew where they were stored, and that he routinely helped himself to whatever tools he needed rather than requesting them from the foreman. While intimating that all the eight-foot ladders may have been in use at the time of his accident, plaintiff also conceded that his foreman had not directed him to finish the piping in the office suite before undertaking other tasks, and testified that there was sufficient other work to occupy him for the rest of the workday. He also testified that on prior occasions he had waited for a ladder to be freed up by other workers. He claims to have asked his foreman for an eight-foot ladder only an hour or two before he started to install the rods in the office suite. Yet he proceeded to stand on the top cap of a six-foot ladder, which he knew was not tall enough for this task, without talking to the foreman again, or looking for an eight-foot ladder beyond his immediate work location" (6 NY3d at 554-555). Holding that a defendant cannot be held liable where "adequate safety devices are available at the job site but the worker either does not use or misuses them" (id. at 554), the Court concluded that "there were adequate safety devices - eight-foot ladders - available for plaintiff's use at the job site" (id. at 555). Accordingly, the Court determined that the "[p]laintiff's own negligent actions - choosing to use a six-foot ladder that he knew was too short for the work to be accomplished and then standing on the ladder's top cap in order to reach the work - were, as a matter of law, the sole proximate cause of his injuries" (id.).

Under Montgomery and Robinson liability under Labor Law § 240(1) cannot be imposed where the injured worker knows that adequate safety devices are available at the job site but for no good reason fails to use them. We have applied this rule to preclude recovery under section 240(1) in a number of cases (see e.g. Egan v Monadnock Constr., Inc., 43 AD3d 692 [2007], lv denied 10 NY3d 706 [2008]; see also Thomas v Fall Cr. Contrs., Inc., 21 AD3d 756 [2005]).

Here, plaintiff needed a scaffold to perform his task and obtained the one he used from an area near the workers' gang box on the third floor. Although it was the only scaffold on the third floor -- the floor on which he was working -- plaintiff acknowledged that there were scaffolds on the job site that had proper guardrails. Plaintiff testified that, prior to the date of the incident, he observed scaffolds with proper guardrails on both the third floor and other floors, and that, prior to the date of the incident, he observed other workers employed by his employer using scaffolds with proper guardrails. Plaintiff also testified that although his employer could have provided him with a scaffold with proper guardrails, plaintiff did not request one. Additionally, there is no evidence that plaintiff looked "beyond his immediate work location," i.e., the third floor, for a scaffold (see Robinson, 6 NY3d at 555 [worker used ladder that was not tall enough to perform his task without "looking for an [adequate] ladder beyond his immediate work location"]), and no evidence that plaintiff was directed by a superior to perform his task with the inadequate scaffold that he selected.

In light of these facts, the baker's scaffold without siderails is indistinguishable from the bucket in Montgomery and the six-foot ladder in Robinson. Plaintiff's "normal and logical response" should have been to go look for a scaffold with proper guardrails or ask a superior to provide him with one. Thus, defendants established as a matter of law that (1) adequate safety devices were available at the job site, (2) plaintiff knew that the devices were available and (3) plaintiff, for no good reason, failed to use an available adequate safety device. Because plaintiff offered no evidence raising a triable issue of fact with regard to the issue of whether his conduct was the sole proximate cause of his injuries, defendants are entitled to summary judgment dismissing the complaint as against them (see Robinson, 6 NY3d at 554-555; Montgomery, 4 NY3d at 806; Egan, 43 AD3d at 693-694).

Miro v Plaza Constr. Corp. (9 NY3d 948 [2007]), cited by the majority, is consistent with Robinson and Montgomery. In Miro, the plaintiff slipped and fell as he climbed down a ladder he was using to install fire alarms. The ladder was covered partially with sprayed-on fireproofing material, and the plaintiff alleged that the fireproofing material caused him to slip. The plaintiff knew that the material was on the ladder but chose to use it anyway; he testified at his deposition that he could have requested a different ladder but he did not do so.

We reversed an order of Supreme Court granting plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240(1) claim and granted the defendants summary judgment dismissing that claim (38 AD3d 454 [2007]). We reasoned that the plaintiff knowingly chose to use the unsafe ladder despite the fact that he could have requested another ladder, and that the plaintiff's conduct was therefore the sole proximate cause of his injuries. We came to this conclusion even though "the record d[id] not elucidate whether the stockroom where [the defendant owner] kept its supply of ladders was or was not on the work site" (id. at 457). We viewed this factual ambiguity as legally irrelevant; a new ladder could have been provided to the plaintiff at the job site had he requested it (id.).

Although the Court of Appeals affirmed so much of our order as reversed Supreme Court's order granting the plaintiff's motion for summary judgment on liability on the section 240(1) claim, it modified our order by denying summary judgment to the defendants on that claim. The Court held that the defendants were not entitled to summary judgment because "it is not clear from the record how easily a replacement ladder could have been procured" (9 NY3d at 949). Here, however, there is no such material issue of fact precluding summary judgment. To the contrary, as in Robinson (6 NY3d at 555 ["there were adequate safety devices - eight-foot ladders - available for plaintiff's use at the job site"]) and Montgomery (4 NY3d at 806 ["ladders were available at the job site"]), it is undisputed that adequate safety devices were available on the job site. Thus, Miro undermines rather than supports the majority's position.

The majority correctly observes that in Zimmer v Chemung County Performing Arts (65 NY2d 513 [1985]), the Court of Appeals stated that "the mere presence of ladders or safety belts somewhere at the worksite does not establish proper protection'" under Labor Law § 240(1) (id. at 524). But Zimmer was decided at a time when the only defense to a section 240(1) action based on the conduct of the worker was the recalcitrant worker defense. Under that defense, a defendant in a section 240(1) action was absolved of liability if the worker was given but ignored specific instructions to use readily available safety devices (see e.g. Gordon v Eastern Ry. Supply, 82 NY2d 555 [1993]). As the commentary to the PJI charge on section 240(1) explains "A line of cases preceding Blake denied recovery to so-called recalcitrant workers' who ignored specific instructions to use readily available safety equipment. In Cahill v Triborough Bridge and Tunnel Authority (4 NY3d 35 [2004]), however, the Court of Appeals stated that the controlling question is not whether plaintiff was "recalcitrant," but whether a jury could have found that his own conduct, rather than any violation of Labor Law § 240(1), was the sole proximate cause of the accident'" (1B PJI3d 2:217, at 1185 [2009] [internal citations omitted]). Accordingly, the language from Zimmer that the majority relies upon cannot be regarded as authoritative. Moreover, that language cannot be reconciled with the legal principle for which Montgomery and Robinson stand -- liability under Labor Law § 240(1) cannot be imposed where the injured worker knows that adequate safety devices are available at the job site but for no good reason fails to use them (Robinson, 6 NY3d 554 [the prerequisites to Labor Law § 240(1) liability "do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them"]; Montgomery, 4 NY3d at 806 ["since ladders were readily available, plaintiff's normal and logical response' should have been to go get one"]).

The majority writes "that the requirement of a worker's normal and logical' response to get a safety device rather than having one furnished or erected for him is limited to those situations when workers know the exact location of the safety device or devices and where there is a practice of obtaining such devices because it is a simple matter for them to do so." I respectfully disagree, as nothing in Montgomery or Robinson supports reading such a limitation into their holdings. To the contrary, the relevant inquiry under both cases is whether the injured worker knew that adequate safety devices were available at the job site but for no good reason failed to use them. Moreover, by obligating workers to avail themselves of safety devices they know to be available on the job site, the holdings of Montgomery and Robinson provide workers with a strong incentive to engage in behavior that promotes the statutory goal of worker safety. In limiting that obligation to situations in which workers know the "exact location" of safety devices and an antecedent "practice of obtaining such devices" has been established, the majority dilutes that incentive. To that extent, the "lax statutory interpretation" is the one the majority embraces. Finally, the majority's reliance on the fact that the work site consisted of eight floors of the building is misplaced. Regardless of whether safety devices that are not on the job site itself can be "readily available" (see Miro, 9 NY3d at 948), Montgomery and Robinson foreclose any contention that safety devices that a worker knows to be on the job site itself are not "readily available."

With respect to that aspect of the order granting plaintiff's motion to amend his complaint to assert a cause of action under Labor Law § 241(6), the only regulatory predicate plaintiff asserts for that cause of action is 12 NYCRR 23-5.18(b), which prescribes the type of safety railings required on manually-propelled mobile scaffolding. Plaintiff's conduct in using a scaffold with inadequate railings despite the availability of adequate safety devices on the job site was the sole proximate cause of his injuries. Thus, any violation of 12 NYCRR section 23-5.18(b) was not a proximate cause of plaintiff's injuries and the section 241(6) cause of action therefore is devoid of merit (see Davis & Davis v Morson, 286 AD2d 584 [2001] [leave to amend complaint will be denied where the proposed pleading fails to state a cause of action or is palpably insufficient as a matter of law]).

In sum, I would modify the order to grant defendants' cross motion for summary judgment dismissing the complaint and to deny plaintiff's cross motion for leave to amend the complaint. Order, Supreme Court, New York County (Edward H. Lehner, J.), entered November 28, 2007, affirmed, without costs.

All concur except McGuire, J. who dissents in an Opinion. Mazzarelli, J.P., Catterson, McGuire, Acosta, Renwick, JJ.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


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