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Cherry v. Time Warner

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 ยง 240(1), or whether a worker is the sole proximate cause of his injuries, the issue ...


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