Opinion
10667 Index 161274/14
12-26-2019
Shondel FERGUSON, et al., Plaintiffs–Appellants, v. DURST PYRAMID, LLC, et al., Defendants–Respondents, The Durst Organization, Inc., Defendant.
Sacks and Sacks, L.L.P., New York (Scott N. Singer of counsel), for appellants. Cullen and Dykman LLP, New York (Kristy R. Eagan of counsel), for respondents.
Sacks and Sacks, L.L.P., New York (Scott N. Singer of counsel), for appellants.
Cullen and Dykman LLP, New York (Kristy R. Eagan of counsel), for respondents.
Friedman, J.P., Webber, Kern, Moulton, JJ.
Order, Supreme Court, New York County (Margaret A. Chan, J.), entered September 28, 2018, which denied plaintiffs' motion for partial summary judgment on the Labor Law § 240(1) claim and the Labor Law § 241(6) claim predicated on Industrial Code § 23–1.7(f), and granted defendants Durst Pyramid, LLC and Hunter Roberts Construction Group, LLC's motion for summary judgment dismissing the complaint, unanimously modified, on the law, to deny defendants' motion as to the Labor Law §§ 240(1) and 241(6) claims, and grant plaintiff's motion, and otherwise affirmed, without costs.
The protection of Labor Law § 240(1) encompasses plaintiff Shondel Ferguson's fall while trying to access an elevated work platform by stepping up onto an inverted bucket, an inadequate safety device that failed to provide proper protection (see McKeighan v. Vassar Coll., 53 A.D.3d 831, 831–833, 862 N.Y.S.2d 396 [3d Dept. 2008] ; Wilson v. Niagara Univ., 43 A.D.3d 1292, 1292–1293, 842 N.Y.S.2d 819 [4th Dept. 2007] ).
Moreover, defendants failed to cite any evidence rebutting the affidavit by plaintiff's foreman stating that stairs or other access points to the work platform were either restricted or blocked by materials. Because no safety devices were available to plaintiff to access the platform, as a matter of fact and law, plaintiff's attempt to use the inverted bucket cannot be the sole proximate cause of his accident (see Cuentas v. Sephora USA, Inc., 102 A.D.3d 504, 958 N.Y.S.2d 352 [1st Dept. 2013] ).
Because no stairways, ramps, or runaways were available to plaintiff to access the platform, he was entitled to summary judgment on his Labor Law § 241(6) claim predicated upon Industrial Code ( 12 NYCRR) § 23–1.7(f) (see Conklin v. Triborough Bridge & Tunnel Auth., 49 A.D.3d 320, 321, 855 N.Y.S.2d 54 [1st Dept. 2008] ). However, because plaintiff's accident occurred due to the means and methods of accessing his work, which defendants did not direct and control, the common-law negligence and Labor Law § 200 claims were correctly dismissed (see Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 143–144, 950 N.Y.S.2d 35 [1st Dept. 2012, Catterson, J., dissenting] ).
We have considered defendants' remaining contentions and find them unavailing.