Summary
holding that triable issues of fact as to defendant's liability under §241 existed, including whether plaintiff was negligent in failing to use a safety device that was available on the premises
Summary of this case from DeAndrade v. K.J. Mountain Corp.Opinion
Argued January 14, 2000
February 28, 2000
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Underwood, J.), dated March 31, 1999, which granted the defendant's motion for summary judgment dismissing the complaint and denied their cross motion, inter alia, for partial summary judgment and further discovery proceedings, and (2) a judgment of the same court, entered June 9, 1999, which dismissed the complaint. The plaintiffs' notice of appeal from the order is deemed also to be a notice of appeal from the judgment entered thereon (see, CPLR 5501[c]).
Kujawski Dellicarpini, Deer Park, N.Y. (John M. Dellicarpini of counsel), for appellants.
Abbate, Lawrence Worden, P.C., Melville, N.Y. (Jonathan F. Banks of counsel), for respondent.
CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is reversed, on the law, so much of the order as granted the defendant's motion is vacated, the defendant's motion is denied, and the complaint is reinstated; and it is further,
ORDERED that the appellants are awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1]).
The defendant contracted with G.P. Electric (hereinafter G.P.) to remove electrical power panels from columns in a building it owned. The plaintiff Angelo Lorefice, who was employed by G.P., was severely injured when an electrical panel he was working on gave him a shock. The plaintiffs commenced this action in which they alleged causes of action under Labor Law §§ 200 Lab. and 241 Lab.(6). The cause of action under Labor Law § 241 Lab.(6) was based on a violation of a provision of the State Industrial Code (see,12 NYCRR 23-1.13[b][4]), which requires that workers who may come into contact with an electric power circuit be protected against electric shock "by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means" (Snowden v. New York City Tr. Auth., 248 A.D.2d 235, 236).
The Supreme Court erred in dismissing the complaint on the ground that Lorefice assumed the risk of such an injury. Labor Law § 241 Lab.(6) imposes a nondelegable duty of reasonable care upon an owner or general contractor to provide reasonable and adequate protection to workers on the premises (see, Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343 ). The violation of an explicit and concrete provision of the State Industrial Code by a participant in the construction project constitutes some evidence of negligence for which the owner or general contractor may be held vicariously liable. The owner or general contractor may raise any valid defense to the imposition of vicarious liability under Labor Law § 241 Lab.(6), including contributory and comparative negligence (see, Rizzuto v. Wenger Contr. Co., supra; Long v. Forest-Fehlhaber, 55 N.Y.2d 154 ).
The defendant's contention that Lorefice made a decision to work at a live electrical panel with full knowledge of the risk of an electrical shock is relevant to the issue of Lorefice's comparative negligence (see, e.g., Drago v. New York City Tr. Auth., 227 A.D.2d 372; see generally, Arbegast v. Board of Educ. of S. New Berlin Cent. School, 65 N.Y.2d 161, 166-168 ). The doctrine of primary assumption of the risk, relied upon by the defendant, acts as a complete bar to recovery on the theory that the plaintiff consented to the risk (see, Turcotte v. Fell, 68 N.Y.2d 432, 437-439 ). This doctrine has generally been applied to sporting and recreational activities (see, Stirpe v. Maloney Sons, 252 A.D.2d 871 ; Comeau v. Wray, 241 A.D.2d 602 ; see generally, Morgan v. State of New York, 90 N.Y.2d 471 ) but will not bar a claim underLabor Law § 241 Lab.(6). Accordingly, the defendant's motion for summary judgment should have been denied.
Although the plaintiffs established a prima facie violation of12 NYCRR 23-1.13(b)(4) by the defendant, there are triable issues of fact as to the defendant's liability, including whether Lorefice was negligent in failing to use an insulated mat which was available on the premises (see, Snowden v. New York City Tr. Auth., supra). That branch of the plaintiffs' cross motion which was for partial summary judgment on the defendant's liability under Labor Law § 241 Lab.(6) was therefore properly denied.
Finally, the plaintiffs' contentions with respect to the Supreme Court's denial of those branches of their cross motion which were for further discovery proceedings are without merit.