O'Connor & O'Connor (Herzfeld & Rubin, P.C.,
New York, NY [David B. Hamm, Michael B. Gallub, and Linda M.
Brown], of counsel), for appellant-respondent.
Krakower, LLP, New City, NY (Leslie Kelmachter, Todd
Krakower, and Erika Minerowicz of counsel), for
LEONARD B. AUSTIN, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE,
COLLEEN D. DUFFY, JJ.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
defendant appeals, as limited by its brief, from stated
portions of an order of the Supreme Court, Kings County
(Martin, J.), dated December 11, 2014, which, inter alia,
denied that branch of its motion, made at the close of
evidence, which was pursuant to CPLR 4401 for judgment as a
matter of law dismissing the cause of action alleging a
violation of Labor Law § 240(1) and granted that branch
of the plaintiffs' motion which was pursuant to CPLR 4401
for judgment as a matter of law on that cause of action, and
the plaintiffs cross-appeal, as limited by their brief, from
so much of the same order as, in effect, sua sponte, directed
dismissal of the cause of action alleging a violation of
Labor Law § 241(6).
that the cross appeal is dismissed, as no appeal lies as of
right from an order which does not decide a motion made on
notice (see CPLR 5701[a]), and we decline to grant leave
to appeal (see CPLR 5701[c]); and it is further, ORDERED that
the order is affirmed insofar as appealed from by the
defendant; and it is further, ORDERED that one bill of costs
is awarded to the plaintiffs.
plaintiff Christopher Raia (hereinafter the plaintiff), a
plumber's mechanic, alleged that on January 14, 2010, he
was injured when he was performing a job which required him
to repair a boiler in the basement of one of the defendant
building owner's cooperative buildings. At trial, the
plaintiff testified that the boiler room contained two
boilers, denominated boiler 1 and boiler 2. He testified that
he performed work on boiler 2, which was shut off, while
boiler 1 remained on. According to the plaintiff, to complete
his work, he and his two coworkers used an extension ladder
to ascend approximately 15 feet above the ground to the top
of the boiler, where they worked on a two-foot-wide ledge
without any protective railing. Boiler 2 was connected to
boiler 1 by a series of pipes, and hot water at a temperature
of 180 degrees Fahrenheit flowed from boiler 1 into boiler 2.
The plaintiff further testified that the pipes above boiler 2
had shut-off valves just above where the plaintiff and his
coworkers were working atop boiler 2, and that the work in
which he and his coworkers were engaged required them to
remove the sections of those pipes below the shut-off valves
that connected into boiler 2. The plaintiff testified that he
was injured when one of his coworkers accidentally bumped
into two of the valves, which allowed hot water and steam to
escape. The plaintiff testified that, as a result, he was
burned by the hot water and fell from the top of boiler 2 to
the floor, sustaining injuries.
plaintiff, and his wife suing derivatively, commenced this
action against the defendant building owner, asserting causes
of action alleging violations of Labor Law §§ 200,
240(1), and 241(6), and common-law negligence. A jury trial
was held and, at the close of evidence, the plaintiffs moved,
pursuant to CPLR 4401, among other things, for judgment as a
matter of law on the Labor Law § 240(1) cause of action.
The defendant also moved, among other things, for judgment as
a matter of law dismissing the Labor Law § 240(1) cause
of action. After trial, the jury returned a verdict finding
that Labor Law § 240(1) applied to this action, and that
the defendant violated the statute by failing to provide the
plaintiff with a proper safety device. However, it also found
that such failure was not a proximate cause of the
plaintiff's injuries. The jury also found the defendant
liable under Labor Law § 200 and common-law negligence.
Additionally, it found that the plaintiff's actions were
a substantial factor in causing the accident, and apportioned
10% of the fault to the plaintiff.
Thereafter, the plaintiffs moved, among other things, to set
aside the portion of the verdict that found that the
plaintiff was a substantial factor in causing the accident
and apportioning 10% of the fault to him. The Supreme Court,
in an order dated December 11, 2014, inter alia, granted that
branch of the plaintiffs' motion which was pursuant to
CPLR 4401 for judgment as a matter of law on the Labor Law
§ 240(1) cause of action, and set aside the portion of
the verdict which found that the plaintiff was a substantial
factor in causing the accident and apportioned 10% of the
fault to him.
A motion for judgment as a matter of law pursuant to CPLR
4401 or 4404 may be granted only when the trial court
determines that, upon the evidence presented, there is no
valid line of reasoning and permissible inferences which
could possibly lead rational persons to the conclusion
reached by the jury upon the evidence presented at trial, and
no rational process by which the jury could find in favor of
the nonmoving party'" (Hamilton v Rouse, 46
A.D.3d 514, 516, quoting Tapia v Dattco, Inc., 32
A.D.3d 842, 844). "In considering such a motion, the
trial court must afford the party opposing the motion every
inference which may properly be drawn from the facts
presented, and the facts must be considered in a light most
favorable to the nonmovant" (Hamilton v Rouse, 46
A.D.3d at 516 [internal quotation marks omitted]).
Law § 240(1) requires that "[a]ll contractors and
owners, " in the "repairing" 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." Liability may
"be imposed under the statute only where the
plaintiff's injuries were the direct consequence of a
failure to provide adequate protection against a risk arising
from a physically significant elevation
differential'" (Nicometi v Vineyards of
Fredonia, LLC, 25 N.Y.3d 90, 97, quoting Runner v
New York Stock Exch., Inc., 13 N.Y.3d 599, 603; see
Doto v Astoria Energy II, LLC, 129 A.D.3d 660, 662).
the evidence adduced at trial, viewed in the light most
favorable to the defendant, demonstrated that the defendant
failed to provide an adequate safety device to the plaintiff,
and that this failure proximately caused the plaintiff's
fall. The fact that the plaintiff's coworker bumped into
the valves, which caused hot water and steam to pour onto the
plaintiff and precipitated his fall, was not of such an
extraordinary nature or so attenuated from the
defendant's conduct that responsibility for the injury
should not reasonably be attributed to it (see Morocho v
Plainview-Old Bethpage Cent. Sch. Dist., 116 A.D.3d 935,
936; Cordero v Kaiser Org., 288 A.D.2d 424, 426).
Moreover, in light of the statutory violation, even if the
plaintiff were negligent in some respect, his comparative
negligence would not bar liability under Labor Law §
240(1) (see Gabrus v New York City Hous. Auth., 105
A.D.3d 699, 700; see also Castillo v 62-25 30th Ave.
Realty, LLC, 47 A.D.3d 865, 866).
light of our determination, we need not reach the
parties' remaining contentions.
the Supreme Court properly denied that branch of the
defendant's motion which was pursuant to CPLR 4401 for
judgment as a matter of law dismissing the Labor Law §
240(1) cause of action, and properly granted that branch of
the plaintiffs' motion which ...