Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered June 23, 2008, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on the issue of liability under Labor Law § 240(1) and granted defendants' cross motions for summary judgment dismissing the § 241(6) claim, modified, on the law, plaintiff's motion granted, the matter remanded for assessment of damages, and otherwise affirmed, without costs.
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.
Tom, J.P., Nardelli, Renwick, Freedman, RomÁn, JJ.
23055/03, 84118/04 & 84730/05
Plaintiff, an independent contractor, was engaged to repair an inoperative rolling garage gate permanently affixed to a structure used as a commercial parking facility (see Izrailev v Ficarra Furniture of Long Is., 70 NY2d 813, 815 ). The work required the removal of a 300-pound tube-and-spring assembly from brackets securing it to the top of the garage entranceway, more than 10 feet above the ground. Plaintiff improvised a pulley system consisting of a length of chain draped over an upper rung of his own extension ladder and attached to the assembly. As plaintiff and his co-worker were lowering the assembly, one end struck the ground, causing the ladder to move. Plaintiff, who was standing on the ladder, lost his balance and fell to the sidewalk below, fracturing his wrist.
Plaintiff's injury is "the direct consequence of a failure to provide statutorily required protection against a risk plainly arising from a workplace elevation differential," in which "the harm flows directly from the application of the force of gravity to the object" (Runner v New York Stock Exch., __ NY3d __, 2009 NY Slip Op 09310 ; cf. Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 ). Here, it is undisputed that plaintiff's work entailed the removal of a 300-pound assemblage comprising part of a metal gate and secured above the entranceway of a building or structure. For this type of work, Labor Law § 240(1) requires that a worker be provided with appropriate safety devices, as enumerated in that section, such as scaffolding or a hoist, hanger or pulley. The only safety device defendants made available was an A-frame ladder, and their failure to provide adequate safety devices under § 240(1) renders them liable for plaintiff's injuries as a matter of law (Velasco v Green-Wood Cemetery, 8 AD3d 88 ). Defendants do not explain how an A-frame ladder would have provided adequate protection. That plaintiff's improvisational use of his own extension ladder might be viewed as inappropriate is not material since a worker's contributory negligence does not bar recovery under § 240(1) (see Bland v Manocherian, 66 NY2d 452, 459-460 ; Velasco, 8 AD3d at 89; Hernandez v 151 Sullivan Tenant Corp., 307 AD2d 207, 208 ).
Labor Law § 241(6), however, is inapposite because plaintiff was not performing his work in the context of construction, demolition or excavation (see Caban v Maria Estela Houses I Assoc., L.P., 63 AD3d 639, 640 ). All concur except Nardelli, J. who dissents in part in a memorandum as follows:
NARDELLI, J. (dissenting in part)
I agree with the majority that plaintiff's claim under Labor Law § 241(6) should be dismissed, but cannot agree that plaintiff should be granted summary judgment on the § 240(1) claim. There are, I respectfully submit, questions of fact as to whether there was even a violation of the statute, and, even more importantly, as to whether plaintiff's actions were the sole proximate cause of the accident. These questions must first be resolved before inquiry is made as to whether other safety devices could have prevented the accident.
On May 9, 2003, plaintiff arrived at a commercial parking facility owned by defendant The Park Here Garage Co., and leased by defendant Jonathan & Gabrielle Parking, to, in his words, "repair a roll-up metal gate that was attached along the entranceway." Plaintiff himself stated that he is "a self-employed construction worker who specializes in welding, installing and repairing roll-up gates." He is paid in cash. At the garage no one instructed him on how to do his work. He was only told what work needed to be done by the person who he believed was the garage manager. At the garage he was assisted only by his nephew, Ramon Martell, whom he hired, and paid.
At the time of the accident, plaintiff was removing a long tube and spring placed above the entranceway, an assemblage which was quite heavy. Plaintiff used his own aluminum extension ladder while working, which he placed against the building's exterior in the middle of the entranceway. He had brought the ladder to the job location in his own van, which contained all the materials he intended to install or use in the repairs.
The ladder had rubber feet which set automatically and adjusted to the surface beneath them to protect against slippage. At the time of the accident, plaintiff claimed he had placed the ladder on level ground. Plaintiff had never experienced any problems with the ladder, and had used it previously on the day of the accident. There was, however, another ladder -- an A-frame -- at the premises, which plaintiff elected not to use while removing the assemblage. His nephew, Martell, had used the A-frame ladder earlier, while removing screws from the tubing by cutting them, without experiencing any problem with the ladder. After removing the brackets that held the tube assemblage in place, plaintiff and Martell used a chain, which he had also brought to the location, to devise a pulley system, with one end of the chain hooked to a rung near the top of the extension ladder, and the other end wrapped around the tube assemblage. Plaintiff stood on the ladder to make sure the chain did not become stuck, while Martell stood on the sidewalk below, pulling the chain to lower the tube. As the tube lowered, it tilted and one of its ends struck the ground, causing the ladder to move. Plaintiff lost his balance and fell to the ground, fracturing his left wrist. The ladder did not topple, but remained upright, leaning against the building.
Monelys Alcantara, a nonparty witness who observed the incident from his automobile body shop across the street, testified at a deposition that the sidewalk outside the garage is inclined approximately five or six inches, which caused the ladder to tilt to the left as it leaned against the building. Alcantara yelled to the men that they should "tie that ladder very well" because it was leaning, but the men did not respond.
In reversing the motion court's denial of summary judgment, the majority agrees that the A-frame ladder was supplied, but concludes, without elaboration, that as a matter of law this was ...