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Escobar v. Safi

Supreme Court of New York, Second Department

May 24, 2017

Jose Andres Escobar, respondent,
v.
Bebe Halima Safi, appellant. Index No. 11496/13

          Harris King Fodera & Correia (Mauro Lilling Naparty, LLP, Woodbury, NY [Matthew W. Naparty and Seth M. Weinberg], of counsel), for appellant.

          Gorayeb & Associates, P.C., New York, NY (John M. Shaw of counsel), for respondent.

          REINALDO E. RIVERA, J.P. LEONARD B. AUSTIN ROBERT J. MILLER BETSY BARROS, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Baily-Schiffman, J.), dated May 19, 2016, as granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).

         ORDERED that the order is affirmed insofar as appealed from, with costs.

         During the replacement of the roof on the defendant's three-family home, the plaintiff was injured when a sheet of plywood fell and struck him as he was standing on the ground. The plaintiff had been cutting the sheets of plywood in the driveway before handing them off to a coworker to tie the sheets to ropes to be hoisted up to the workers installing the sheets on the roof, located 20 feet above.

         The plaintiff commenced this action against the defendant alleging, inter alia, a violation of Labor Law § 240(1). Thereafter, the plaintiff moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) and to amend the complaint to correct the date of the accident. The defendant cross-moved for summary judgment dismissing the complaint. The Supreme Court granted the plaintiff's motion and denied the defendant's cross motion. The defendant appeals from so much of the order as granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).

         Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites (see McCarthy v Turner Constr., Inc., 17 N.Y.3d 369, 374; Esteves-Rivas v W2001Z/15CPW Realty, LLC, 104 A.D.3d 802, 803; Martinez v Ashley Apts Co., LLC, 80 A.D.3d 734, 735). The "extraordinary protections" (Nicometi v Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 96 [internal quotation marks omitted]) of Labor Law § 240(1) only relate to " special hazards' presenting elevation-related risk[s]'" (id. at 97, quoting Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 514).

         "To prevail on a Labor Law § 240(1) cause of action, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries" (Allan v DHL Express, Inc., 99 A.D.3d 828, 833; see Berg v Albany Ladder Co., Inc., 10 N.Y.3d 902, 904; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287). Liability under Labor Law § 240(1) depends on whether the injured worker's "task creates an elevation-related risk of the kind that the safety devices listed in section 240(1) protect against" (Broggy v Rockefeller Group, Inc., 8 N.Y.3d 675, 681). The single decisive question in determining whether Labor Law § 240(1) is applicable is whether 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 (see Runner v New York Stock Exch. Inc., 13 N.Y.3d 599, 603). "[F]alling object" liability under Labor Law § 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured (Sarata v Metropolitan Transp. Auth., 134 A.D.3d 1089, 1091 [internal quotation marks omitted]; see Quattrocchi v F.J. Sciame Constr. Corp., 11 N.Y.3d 757, 758-759; Sung Kyu-To v Triangle Equities, LLC, 84 A.D.3d 1058, 1059-1060) but also where the plaintiff demonstrates that, at the time the object fell, it "required securing for the purposes of the undertaking" (Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 N.Y.3d 658, 663 [internal quotation marks omitted]).

         Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the defendant failed to provide an adequate safety device to protect him and that this failure was a proximate cause of his injuries. This is so whether the sheet of plywood fell as it was being hoisted because it was not properly secured while it was being pulled up to the roof, as testified to by the plaintiff (see Coque v Wildflower Estates Developers, Inc., 31 A.D.3d 484, 487-488; Orner v Port Auth. of N.Y. & N.J., 293 A.D.2d 517, 517-518), or whether the sheet of plywood fell from the hands of the plaintiff's coworkers on the roof as it was being installed or about to be installed due to a failure to secure it, a theory advanced by the defendant (see Outar v City of New York, 5 N.Y.3d 731, 732; Pritchard v Tully Constr. Co., Inc., 82 A.D.3d 730, 730), since either scenario implicates the protections of Labor Law § 240(1) (see La Veglia v St. Francis Hosp., 78 A.D.3d 1123, 1127).

         In opposition, the defendant failed to raise a triable issue of fact as to the absence of a statutory violation or as to whether the plaintiff's own conduct was the sole proximate cause of his accident (see McCallister v 200 Park, L.P., 92 A.D.3d 927, 929; La Veglia v St. Francis Hosp., 78 A.D.3d at 1127). The defendant did not offer any evidence, other than mere speculation, in opposition to the plaintiff's showing that he was entitled to judgment as a matter of law, which was insufficient to refute that showing or to raise a bona fide issue as to how the accident occurred (see Carrion v City of New York, 111 A.D.3d 872, 873; Ernest v Pleasantville Union Free School Dist., 28 A.D.3d 419, 420).

         Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability ...


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