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Griffin v. AVA Realty Ithaca, LLC

Supreme Court of New York, Third Department

May 11, 2017

DAVID GRIFFIN, Appellant,
v.
AVA REALTY ITHACA, LLC, et al., Respondents, et al., Defendant. (And Two Third-Party Actions.)

          Calendar Date: March 28, 2017

          Michaels & Smolak, PC, Auburn (Michael G. Bersani of counsel), for appellant.

          Osborn, Reed & Burke, LLP, Rochester (L. Damien Costanza of counsel), for AVA Realty Ithaca, LLC, respondent.

          Pappas, Cox, Kimpel, Dodd & Levine, PC, Syracuse (Sherry R. Bruce of counsel), for Varish Construction, Inc. and another, respondents.

          Before: Garry, J.P., Lynch, Rose, Clark and Aarons, JJ.

          MEMORANDUM AND ORDER

          Garry, J.P.

         Appeal from an order of the Supreme Court (Rumsey, J.), entered May 10, 2016 in Tompkins County, which, among other things, denied plaintiff's motion for partial summary judgment.

         In January 2013, plaintiff and his coworker, Patrick Gerrard, were constructing a masonry elevator shaft when the

         scaffolding they were working on collapsed. The men fell more than 40 feet into the shaft. In October 2013, plaintiff commenced this action seeking to recover damages for his resulting injuries against defendants Varish Construction, Inc. and Varish Construction International, Inc. (hereinafter collectively referred to as Varish), the general contractors, as well as defendant AVA Realty Ithaca, LLC, the property owner, and defendant Aspen General Contractors, Inc., the masonry subcontractor. [1]

         Gerrard filed a separate action to recover for his injuries. In June 2014, Supreme Court granted Gerrard's motion for partial summary judgment as to liability on his Labor Law § 240 (1) claim as against AVA and Varish Construction, Inc., upon finding, as pertinent here, that Gerrard was not the sole proximate cause of his injuries. Thereafter, in the current action, plaintiff also moved for partial summary judgment as to liability on his Labor Law § 240 (1) claim against AVA and Varish. Supreme Court denied plaintiff's motion on the grounds that there were issues of fact as to whether plaintiff was the sole proximate cause of his injuries, and that the doctrine of collateral estoppel did not apply. Plaintiff appeals.

         We agree with Supreme Court that the doctrine of collateral estoppel does not apply. The doctrine precludes a party from relitigating an issue that is identical to a material issue that was necessarily decided in an earlier action, where the party had a "full and fair opportunity to litigate the issue in the earlier action" (Parker v Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 349 [1999] [internal citation omitted]; see Kaufman v Eli Lilly & Co., 65 N.Y.2d 449, 455 [1985]). It was plaintiff's burden, as the party invoking the doctrine, to establish identity of issue (see Parker v Blauvelt Volunteer Fire Co., 93 N.Y.2d at 349; Vera v Low Income Mktg. Corp., 145 A.D.3d 509, 510 [2016]). In Gerrard's action, Supreme Court held that Gerrard could not have been the sole proximate cause of his injuries because he was not involved in the reassembly of the scaffolding. Here, in contrast, it is undisputed that plaintiff participated in the disassembly and reassembly of the scaffolding. This presents a distinctly different factual issue. Moreover, the issue of sole proximate cause related to plaintiff's actions was not decided in Gerrard's action. Accordingly, Supreme Court properly declined to give the determination in Gerrard's action preclusive effect (see Vera v Low Income Mktg. Corp., 145 A.D.3d at 511; Gadani v DeBrino Caulking Assoc., Inc., 86 A.D.3d 689, 692 [2011]; Walter v White-Bonn, Inc., 8 A.D.3d 715, 716 [2004]).

         To demonstrate entitlement to summary judgment on his Labor Law § 240 (1) claim, plaintiff bore the burden of demonstrating, as a matter of law, that a violation of the statute was the proximate cause of his injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287 [2003]; Ortman v Logsdon, 121 A.D.3d 1388, 1389 [2014]; Silvia v Bow Tie Partners, LLC, 77 A.D.3d 1143, 1144 [2010]). Initially, as plaintiff was engaged to complete masonry work at the construction site and was "injured as the result of a fall from an elevated work site, ... this matter [is] squarely within the purview of Labor Law § 240 (1)" (Kyle v City of New York, 268 A.D.2d 192, 196 [2000], lv denied 97 N.Y.2d 608 [2002]; see Salzer v Benderson Dev. Co., LLC, 130 A.D.3d 1226, 1228 [2015]). We find no merit in Varish's contention that Labor Law § 240 (1) does not apply in that plaintiff was allegedly an independent contractor, not an employee. The duty to provide a safe working environment is nondelegable, and a contractor or owner and its agents may be liable "even though it exercised no control over, or supervision of, an independent contractor who performed the job" (Karnes v Saratoga Pine Ridge, 241 A.D.2d 810, 811 [1997] [internal quotation marks and citations omitted]; see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d at 287; Arey v M. Dunn, Inc., 29 A.D.3d 1137, 1139 [2006]).

         In support of his motion, plaintiff submitted his own deposition testimony, the contract between Varish and Aspen, and the Occupational Safety and Health Act (hereinafter OSHA) citation and notification of penalty. Plaintiff testified that on the first day of the project - two days before the accident - Aspen's project manager, Steve Stafford, directed him to relocate the scaffolding from the bottom of the elevator shaft to the fourth floor, and assisted him in doing so. It is undisputed that the scaffolding's base plates, which were embedded in ice at the bottom of the shaft, were never reattached to the scaffolding when it was reassembled. On the second day thereafter, while plaintiff and Gerrard were upon the scaffolding, it punctured the decking that it was resting upon and collapsed, causing them both to fall. The parties agree that the presence of the scaffolding's base plates, or an appropriate alternative, would have prevented its collapse. The OSHA citation and notification of penalty identified the absence of the base plates and a "personal fall arrest system or guardrail system" to be violations of OSHA regulations.

         Plaintiff thus established a prima facie showing of liability under the statute, and the burden shifted to defendants to raise questions of fact. Defendants assert that plaintiff was the sole proximate cause of his injuries. A plaintiff is the sole proximate cause of his or her injuries where it is shown that "[he or she] had adequate safety devices available; that he [or she] knew both that they were available and that he [or she] was expected to use them; that he [or she] chose for no good reason not to do so; and that had he [or she] ...


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