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Wicks v. Leemilt's Petroleum, Inc.

Supreme Court of New York, Second Department

February 20, 2013

Paul Wicks, appellant.
v.
Leemilt's Petroleum, Inc., et al., respondents, et al., defendant. Index No. 1843/08

Levine and Wiss, PLLC, Mineola, N.Y. (Anthony J. Ferrante of counsel), for appellant.

Robert J. Cava, West Babylon, N.Y., for respondents Leemilt's Petroleum, Inc., Getty Petroleum

Marketing, Inc., 111 Montauk Highway, LLC, and defendant Getty Realty Corp.

DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, PLUMMER E. LOTT, SHERI S. ROMAN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered January 21, 2011, as denied his cross motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), and for leave to supplement his bill of particulars to allege that the circumstantial evidence permits an inference of the defendants' negligence under the doctrine of res ipsa loquitur, and granted that branch of the motion of the defendants Leemilt's Petroleum, Inc., Getty Realty Corp., Getty Petroleum Marketing, Inc., and 111 Montauk Highway, LLC, which was for summary judgment dismissing the complaint insofar as asserted against the defendants Getty Petroleum Marketing, Inc., and 111 Montauk Highway, LLC.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the plaintiff's cross motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), and for leave to supplement his bill of particulars to allege that the circumstantial evidence permits an inference of the defendants' negligence under the doctrine of res ipsa loquitur is granted, and that branch of the motion of the defendants Leemilt's Petroleum, Inc., Getty Realty Corp., Getty Petroleum Marketing, Inc., and 111 Montauk Highway, LLC, which was for summary judgment dismissing the complaint insofar as asserted against the defendants Getty Petroleum Marketing, Inc., and 111 Montauk Highway, LLC, is denied.

The plaintiff allegedly was injured as a result of his fall from an extension ladder while he was performing work on an elevated fire extinguishing system at a gasoline station. The plaintiff's employer provided him with a van equipped with an extension ladder and an A-frame ladder. The plaintiff stated that a scissors lift could have been attached to the van, but he did not bring it to the work site because he had received no training in its operation. At the work site, the plaintiff determined that he was unable to position the A-frame ladder close enough to the fire extinguishing system, which was located on a pole in the middle of a "gasoline island" with a six-inch curb. The plaintiff leaned the extension ladder against the pole and secured the ladder with two clips. As he climbed the ladder, the pole collapsed and the plaintiff fell to the ground. The plaintiff commenced this action alleging, inter alia, a violation of Labor Law § 240(1) and a common-law negligence cause of action, naming as defendants, among others, Leemilt's Petroleum, Inc., Getty Realty Corp., Getty Petroleum Marketing, Inc., and 111 Montauk Highway, LLC (hereinafter collectively the defendants), all of which allegedly possessed ownership or leasehold interests in the subject premises.

"To recover on a cause of action based on a violation of Labor Law § 240(1), a plaintiff must demonstrate that his or her injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential'" ( Jimenez v RC Church of Epiphany, 85 A.D.3d 974, 975, quoting Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 603). Here, the plaintiff established, prima facie, his entitlement to judgment as a matter of law on the issue of liability on his cause of action alleging a violation of Labor Law § 240(1) by submitting evidence that the defendants failed to ensure the proper placement of the extension ladder and that such failure was a proximate cause of his injuries ( see Klein v City of New York, 89 N.Y.2d 833, 835; Melchor v Singh, 90 A.D.3d 866, 868; Leconte v 80 E. End Owners Corp., 80 A.D.3d 669 ; Ruiz v WDF, Inc., 45 A.D.3d 758 ). In opposition to the plaintiff's prima facie showing, the defendants failed to raise a triable issue of fact.

"The purpose of a bill of particulars is to amplify the pleadings, limit proof, and prevent surprise at trial" ( Matter of People v Imported Quality Guard Dogs, Inc., 88 A.D.3d 800, 801 [internal quotation marks omitted]). Here, the plaintiff sought leave to supplement his bill of particulars to allege that the circumstantial evidence permits the inference of the defendants' negligence under the doctrine of res ipsa loquitur ( see generally Morejon v Rais Constr. Co., 7 N.Y.3d 203, 209). Since the doctrine merely permits an inference arising from the evidence in a negligence case, the plaintiff's failure to plead res ipsa loquitur does not foreclose its application on summary judgment or at trial, if warranted by the evidence ( see Estrategia Corp. v Lafayette Commercial Condo, 95 A.D.3d 732 ; Ladd v Hudson Val. Ambulance Serv., 142 A.D.2d 17, 19; Weeden v Armor Elevator Co., 97 A.D.2d 197, 201-202). Thus, the defendant in a negligence action is not prejudiced by the granting of a motion to supplement the complaint or bill of particulars to assert the doctrine ( see Jappa v Starrett City, Inc., 67 A.D.3d 968, 969; Olson v 625 Ocean Co., 40 A.D.3d 828 ). Here, the defendants are not prejudiced by the plaintiff's proposed supplement, which sets forth no new factual allegations or new causes of action. Thus, leave to supplement the bill of particulars should have been granted ( see Jappa v Starrett City, Inc., 67 A.D.3d at 969; Olson v 625 Ocean Co., 40 A.D.3d at 828; cf. Sanders v St. Vincent Hosp., 95 A.D.3d 1195, 1196; Lipari v Babylon Riding Ctr., Inc., 18 A.D.3d 824, 826).

The defendants Getty Petroleum Marketing, Inc., and 111 Montauk Highway, LLC, contend that they are not "owners" within the meaning of Labor Law § 240(1). However, the evidence they submitted in support of that contention failed to establish that they did not either "fulfill[ ] the role of owner by contracting to have [the] work performed" ( Scaparo v Village of Ilion,13 N.Y.3d 864, 866), have the right to control the work being done ( see Ferluckaj v Goldman Sachs & Co.,12 N.Y.3d 316, 320), or have a sufficient "nexus" to the work performed, "whether by a lease agreement or grant of an easement, or other property interest," to support the imposition of Labor Law § 240(1) liability on them ( Abbatiello v Lancaster Studio Assoc.,3 N.Y.3d 46, 51; see Ferreira v Village of Kings Point,68 A.D.3d 1048, 1050). Since the defendants failed to make a prima facie showing, the branch of their motion which was for summary judgment dismissing the complaint insofar as asserted ...


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