Opinion
No. 7517/10.
2012-06-28
Robert MURPHY, Plaintiff, v. TAHOE DEVELOPMENT CORP., and 126 Newton St., LLC., Defendants.
BERNICE D. SIEGAL, J.
Plaintiff moves for an order: 1) pursuant to CPLR § 3212, seeking partial summary judgment against defendants, Tahoe Development Corporation (“Tahoe”) and 126 Newton St., LLC (“126 Newton LLC”) (hereinafter, collectively known as the “Defendants”), on the issue of liability based upon § 240(1) and § 241(6) of the New York Labor Law and granting to plaintiff judgment on the issue of liability on the grounds that there are no meritorious defenses to plaintiff's Labor Law claims; and 2) dismissing the affirmative defenses raised in defendants' Answer.
Facts
This is an action for serious and permanent personal injuries that Robert Murphy (“Murphy”) allegedly sustained as a result of an accident occurring on March 13, 2008, at approximately 10:30 A.M., on a stairwell landing located at 128 Newton Street, Brooklyn, New York. At the time of the accident, construction /renovation was taking place at these premises. Murphy was descending an A-frame ladder when the third step allegedly broke causing him to fall to the ground.
Murphy was employed by Bass Plumbing & Heating Corporation (“Bass Plumbing”) from 2001 until March 13, 2008. On the date of the alleged accident, Murphy was working as a mechanic for Bass Plumbing on a project involving new construction at the premises located on 128 Newton Street, Brooklyn, New York.
At the time of the alleged accident, Murphy was working on gas piping for the boiler with his foreman, Roman Lazevnik (“Lazevnik”). Murphy testified at his deposition that the lines of the pipes that he was instructed to hook up were located in a crawl space in the hallway at the top of the staircase between the eighth floor and the roof of the building; and that the only way to gain access to the crawl space was by using a ladder. Murphy also testified at his deposition that “somebody from Tahoe” handed them an eight foot, A-frame, wooden ladder; that they began to use this ladder about a half hour prior to the alleged accident; that the ladder “seemed all right to (him)”; and that he leaned the ladder against the wall on an angle, but did not open it because there was not enough room on the staircase's landing, which was approximately three feet by three feet. He also testified that his foreman went up the ladder first and then he followed. Murphy testified that they proceeded to work for approximately fifteen minutes until his foreman descended the ladder to cut a piece of pipe; and approximately five to ten minutes later, Murphy climbed down the ladder. According to Murphy, he went down about two or three steps, heard a snapping sound, then one of the wood prongs broke, and he fell down the ladder. He testified that he fell from just below the roof level to the eighth floor landing, which was approximately thirty steps. According to Anthony Gurino (“Gurino”), president of Tahoe and 50% owner of 126 Newton LLC, the distance between the landing on the eighth floor and the ceiling was eight feet. Murphy was then taken to the emergency room to be treated.
126 Newton LLC owned the premises located at 128 Newton Street, Brooklyn, New York. Tahoe are developers of commercial and residential property and were the general contractors for this project pursuant to contract. In addition, Tahoe retained subcontractors for this project, including Bass Plumbing, a plumbing, sprinkler, and heating company, which was to supply all the roughing, gas fixtures for the building, sprinklers, and fire system and to do the plumbing and sprinkler work, including performing gas piping.
Gurino testified that he, Jack Korn (“Korn”), who was a principal and 50% owner of 126 Newton LLC, and John Orati (“Orati”), who was the Superintendant, were responsible for the safety on this project. Gurino testified at his deposition that the ladder was already broken, the clean up guys had put the ladder in the middle of the floor, and the clean up guys disposed of the ladder after the alleged accident occurred. Furthermore, Gurino testified that the plumber removed the ladder from the garbage, while, Korn testified that Tony, a Tahoe laborer, stated that the plumbers used the ladder from the garbage. It is known that Orati and Gurino were not present at the location when Murphy's alleged accident occurred. However, it is not known whether Korn or the clean up guys were present at the time of the alleged accident. Normally, according to Gurino, Orati, Korn, him, and two clean-up guys were at the site on a regular basis.
Enrico Iervolino (“Iervolino”) was an employee of Bass Plumbing and the head supervisor of this project, and Nate Pugoli (“Pugoli) was the project's supervisor. Ierovolino testified that he received a phone call that Murphy had fallen off a ladder and that the ladder broke while Murphy was working on the sprinkler pipes. Iervolino also testified that the ladder that Murphy had been using at the time of alleged accident was not Bass Plumbing's ladder. Furthermore, Iervolino testified that Bass Plumbing did not use wooden ladders, but rather fiberglass ladders painted blue labeled with Bass's name. Murphy testified that Bass ladders said “Bass” on them to indicate that the ladders belonged to Bass, that these ladders were constructed of aluminum or fiberglass, and that they were yellow and blue in color. Furthermore, Iervolino testified that the day following the alleged accident, Pugoli told him that Murphy fell off the ladder, that the ladder broke, that the ladder was one of Gurino's ladders, and that the ladder had been on the job site.
Contentions
Murphy contends that the alleged accident occurred as a result of defendants' negligence and carelessness in the ownership, control, maintenance, operation, management, inspection, and supervision at the premises located at 128 Newton Street, Brooklyn, New York, and by failing to provide Murphy with proper safety equipment and devices and a safe place to work. Specifically, Murphy contends that defendants violated Labor Law § 240(1) and that defendants violated Labor Law § 241(6) by failing to comply with New York State Industrial Code § § 23–1.21(b)(1), 23–1.21(b)(3), and 23–1.21(b)(4). Furthermore, Murphy contends that he did not contribute to the accident, is without fault, and exercised due care.
Defendants contend that Murphy used a defective ladder, that Murphy knew that this ladder was defective, and that there are obvious questions of fact as to Murphy's failure to avail himself of available safety devices.
Murphy's motion for summary judgment is granted on the issue of defendants' liability pursuant to Labor Law § 240(1) and that there is no meritorious defense to plaintiff's claim pursuant to Labor Law § 240(1) as more fully set below. Murphy's motion for summary judgment is denied on the issue of defendants' liability pursuant to Labor Law § 241(6) and that there is a meritorious defense to plaintiff's claim pursuant to Labor Law § 241(6) as more fully set forth below. Lastly, Murphy's motion for dismissing the affirmative defenses raised in defendants' Answer is granted in part and denied in part as more fully set forth below.
Discussion
I. Labor Law § 240(1)
Plaintiff argues that defendants are absolutely liable for plaintiff's alleged accident pursuant to Labor Law § 240(1) because defendants violated the statute when they breached their nondelegable duty by providing an unsafe ladder on their construction site that proximately caused plaintiff's alleged accident. In opposition, defendants assert that questions of fact exist as to whether defendants violated Labor Law § 240(1), more specifically, there are questions of fact as to who provided the ladder to plaintiff, whether the ladder was visibly defective prior to use by plaintiff, and whether plaintiff willingly utilized a known defective safety device despite other safe ones being readily available.
Labor Law § 240(1) provides, in pertinent part:
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing 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.
The legislative purpose behind Labor Law § 240(1) is to protect workers. ( See Rocovick v. Consolidated Edison Co., 78 N.Y.2d 509, 513 (1991).) In order to accomplish its goal of preventing accidents, Labor Law § 240(1) places the ultimate responsibility for safety practices and safety devices on the owners and the general contractors and their agents who “are best situated to bear that responsibility,” and not on the workers. (Ross v. Curtis–Palmer Hydro–Electric Co., 81 N.Y.2d 494, 500 (1993); see also Rocovick, 78 N.Y.2d at 513.) The Court of Appeals has repeatedly indicated that section 240(1) “is to be construed as liberally as may be for the accomplishment of the purpose for which it was ... framed.” (Martinez v. City of New York, 93 N.Y.2d 322, 326 (1999), quoting Quigley v. Thatcher, 207 N.Y. 66, 68 (1912); see also Melber v. 6333 Main Street, Inc., 91 N.Y.2d 759, 762 (1998).)
Here, it is uncontroverted that the owner of the premises located at 128 Newton Street, Brooklyn, New York is 126 Newton LLC and that the general contractor of the project was Tahoe. Thus, the ultimate responsibility for providing safety practices and safety devices was placed on both defendants, 126 Newton LLC and Tahoe, not on plaintiff.
A. Whether Defendants Have a Nondelegable Duty Under Labor Law § 240(1)
It is also well established that the duty imposed by this statute “is nondelegable and that an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work.” (Ross, 81 N.Y.2d at 500;see also Rocovick, 78 N.Y.2d at 513.)
Here, defendants owed a nondelegable duty under Labor Law § 240(1) to provide ladders on this job site that were safe for employees to utilize. The ladder at issue was an eight foot, A-frame, wooden ladder. Plaintiff testified that the ladders used by Bass Plumbing are labeled with “Bass,” are blue and yellow in color, and are constructed of aluminum or fiberglass, not wood. Iervolino confirmed that Bass Plumbing did not use wooden ladders, but instead, used fiberglass ladders painted blue labeled with Bass's name, in his testimony. Thus, the ladder provided to plaintiff was not owned by Bass Plumbing, meaning that this ladder found on the job site was provided by defendants, despite Gurino's testimony that Tahoe did not provide ladders at the construction site and he did not know who owned the ladder that plaintiff had used.
In addition, the fact that Orati and Gurino were not present at the location at the time of Murphy's alleged accident, and that it is unknown as to whether Korn or the clean up guys were present at the time of the alleged accident, is also irrelevant because the duty to provide safe ladders to its employees is imposed even if defendants failed to exercise supervision or control over the work. (Ross, 81 N.Y.2d at 500;Rocovick, 78N.Y.2d at 513.) Therefore, defendants breached their nondelegable duty to plaintiff to provide safe ladders at their construction site under Labor Law § 240(1).
B. Whether Plaintiff Establishes Its Prima Facie Case Under Labor Law § 240(1)
The Court of Appeals of New York has interpreted Labor Law § 240(1) “as imposing absolute liability for a breach which has proximately caused an injury.” (Rocovick, 78 N.Y.2d at 513.) Thus, a “violation of the statute is not enough” to impose absolute liability; instead, plaintiff must “show that the violation was a contributing cause of his fall” or that the violation is the proximate cause of the accident in establishing its prima facie case. (Blake v. Neighborhood Housing Services of New York City, 1 NY3d 280, 287 (2003).) As stated above, defendants breached their nondelegable duty to plaintiff to supply safe ladders at their construction site.
Sztachanski v. Morse Diesel International, 9 AD3d 457 (2d Dept 2004), is similar to the case at hand. In Sztachanski, plaintiff had been standing on a closed A-frame ladder, which was leaning against a wall, while painting a portion of a ceiling in the Big Bang Room at the Rose Center for Earth and Space. The Second Department noted that the evidence demonstrated that “since the walls were curved, the injured plaintiff had to use the A-frame ladder in the closed position to access the portion of the ceiling.” ( Id. at 457.) His accident occurred when the ladder slid out from underneath him. The Second Department held that, first, plaintiff should be granted with a judgment as a matter of law on issue of liability pursuant to Labor Law § 240(1), and, second, that defendants were liable under this statute “because they failed to provide the injured plaintiff with proper protection and that failure proximately caused the accident.” ( Id.)
Here, according to plaintiff's testimony, his foreman stated that they needed a ladder and one of defendants' employees provided them with the wooden, A-frame ladder. On the contrary, Gurino from Tahoe testified that the plumber removed the ladder from the garbage, and Korn from 126 Newton LLC testified that Tony, a Tahoe laborer, stated that the plumber used the ladder from the garbage. Even though there is a dispute of fact as to how the ladder became into plaintiff's possession and whether the ladder was defective prior to plaintiff's use or as a result of plaintiff's use, the plaintiff had no other choice but to stand on a closed A-frame ladder that was leaned against the wall at an angle because the staircase's landing was too small to open the ladder, similar to the ladder used in Sztachanzki, and the ladder broke while plaintiff was descending it causing him to fall from just below the roof level to the eighth floor landing. Therefore, defendants proximately caused plaintiff's alleged accident when defendants failed to provide plaintiff with a safe ladder and that failure proximately caused his alleged accident.
C. Whether the Contributory Negligence Is a Defense Under Labor Law § 240(1)
Furthermore, the Court of Appeals of New York has also interpreted that “(n) egligence, if any, of the injured worker is of no consequence” under Labor Law § 240(1). (Rocovick, 78 N.Y.2d at 513.) Thus, “contributory negligence will not exonerate a defendant who has violated the statute and proximately caused a plaintiff's injury.” (Blake, 1 NY3d at 286.) The Court of Appeals has noted that Labor Law § 240(1) is “an exception to CPLR § 1411, which recognizes contributory negligence as a defense in personal injury actions.” ( See id. at 287.) Accordingly, contributory negligence is not a defense to liability under Labor Law § 240(1).
D. Conclusion as to Labor Law § 240(1)
Summary judgment can be granted when there are no issues of material facts to be resolved at trial. ( See Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974) .) Here, defendants are absolutely liable to plaintiff for his alleged accident; defendants violated Labor Law § 240(1) when they breached their nondelegable duty pursuant to this statute to provide safe ladders at their construction site; and the failure to provide a safe ladder proximately caused plaintiff's alleged accident. Furthermore, the issue of whether plaintiff was contributory negligent is of no consequence since defendants violated the statute and proximately caused his accident. Therefore, no issue of material fact exists with regards to defendants' liability pursuant to Labor Law § 240(1); and plaintiff's motion for summary judgment is granted on the issue of defendants' liability pursuant to Labor Law § 240(1).
II. Labor Law § 241(6)
Plaintiff argues that because defendants failed to comply with New York State Industrial Code § § 23–1.21(b)(1), 23–1.21(b)(3), and 23–1.21(b)(4), defendants are liable to plaintiff pursuant to Labor Law § 241(6). In opposition, defendants assert that plaintiff's own culpable conduct or comparative negligence is a defense to a cause of action based on Labor Law § 241(6) bars the granting of summary judgment on the issue of liability pursuant to this provision.
A. Whether Plaintiff Established Its Prima Facie Case Under Labor Law § 241(6)
Labor Law § 241(6) provides, in pertinent part:
All contractors and owners and their agents, ... when constructing or demolishing buildings ... shall comply with the following requirements: ... (6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owner and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.
Labor Law § 241(6) establishes that owners and contractors are required “to provide reasonable and adequate protection and safety' for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor.” (Ross, 81 N.Y.2d at 501—02.)Labor Law § 241(6) imposes a nondelegable duty similarly to the one imposed by Labor Law § 240(1). ( Id., citing Long v. Forest–Fehlhaber, 55 N.Y.2d 154, 159 (1982).) The plaintiff must establish as its prima facie case under Labor Law § 241(6) that the defendants violated a regulation promulgated by the Commission of the Department of Labor, such as an Industrial Code, ( Ross, 81 N.Y.2d at 501—02;Beckford v. 40th Street Associates, 287 A.D.2d 586, 587 (2d Dept 2001)), and “that this violation was the proximate cause of the injured plaintiff's accident” ( Id.)
Here, plaintiff alleged a violation in its verified bill of particulars that defendants failed to comply 12 NYCRR § 23–1.21(b)(1), which provides, in pertinent part: “(b) General requirements for ladders. (1) Strength. Every ladder shall be capable of sustaining without breakage, dislodgment or loosening of any component at least four times the maximum load intended to be placed thereon.”
According to 12 NYCRR § 23–1.21(b)(1), defendants had a nondelegable duty to provide a ladder that is capable of sustaining without breakage. According to plaintiff's testimony, he went down about two or three steps, heard a snapping sound, then one of the wood prongs broke, and he fell down the ladder. Thus, the wooden, A-frame ladder was not capable of sustaining without breakage, and, 12 NYCRR § 23–1.21(b)(1) is violated. Defendants' argument that several other appropriate ladders were available to plaintiff and that this ladder had been removed from the garbage is irrelevant because defendants had a duty to ensure that all ladders on the job site were capable of sustaining without breakage to be in compliance with 12 NYCRR § 23–1.21(b)(1). Furthermore, as shown above, defendants' failure to provide plaintiff with a safe ladder, one that could sustain without breaking, proximately caused his alleged accident. Therefore, defendants violated Labor Law § 241(6) as a result of violating 12 NYCRR § 23–1.21(b)(1) and that violation proximately caused plaintiff's alleged accident.
Here, plaintiff also alleged a violation in its verified bill of particulars that defendants failed to comply with 12 NYCRR § 23–1.21(b)(3), which provides, in pertinent part:
(3) Maintenance and replacement. All ladders shall be maintained in good condition. A ladder shall not be used if any of the following conditions exist: (i) If it has a broken member or part. (ii) If it has any insecure joints between members or parts. (iii) If it has any wooden rung or step that is worn down to three-quarters or less of its original thickness. (iv) If it has any flaw or defect of material that may cause ladder failure.
Plaintiff's argument of why defendants violated 12 NYCRR § 23–1.21(b)(3) is missing. Under this provision, defendants had a nondelegable duty to provide a ladder that was maintained in good condition. However, defendants breached its nondelegable duty. Even though there is dispute as to whether the ladder was defective prior to plaintiff's use, the fact that the wooden, A-frame ladder completely broke while plaintiff was descending it shows that this ladder was not maintained in good condition and in violation of this provision. In addition, if the ladder had been defective prior to plaintiff's use and was in the garbage as defendants testified, then the failure to replace the ladder with one in good condition also violates 12 NYCRR § 23–1.21(b)(3). Furthermore, the failure to maintain a ladder in good condition or replace a ladder not maintained in good condition, or essentially, the failure to provide plaintiff with a safe ladder, as shown above, is the proximate cause of plaintiff's alleged accident. Therefore, defendants violated Labor Law § 241(6) as a result of violating 12 NYCRR § 23–1.21(b)(3) and that violation proximately caused plaintiff's alleged accident.
Here, plaintiff also alleged a violation in its verified bill of particulars that defendants failed to comply 12 NYCRR § 23–1.21(b)(4)(iv), which provides, in pertinent part:
(4) Installation and use .... (iv) When work is being performed from ladder rungs between six and 10 feet above the ladder footing, a leaning ladder shall be held in place by a person stationed at the foot of such ladder unless the upper end of such ladder is secured against side slip by its position of by mechanical means.
The wooden, A-frame ladder used by plaintiff was an eight foot ladder. For defendants to be in compliance with this provision, an employee should have been stationed holding the ladder in which plaintiff and his foreman used; there is no indication that was the case here. However, the fact that no one was holding the ladder while plaintiff was descending is the not the proximate cause here. The proximate cause of plaintiff's alleged accident, as shown above, is the failure of defendants to provide a safe ladder and that failure proximately caused plaintiff's alleged accident. Therefore, defendants did not violate 12 NYCRR § 23–1.21(b)(4)(iv) here.
Furthermore, plaintiff asserts in its motion that defendants also failed to comply with 12 NYCRR § 23–1.21(b)(4)(i), which provides, in pertinent part:
(4) Installation and use. (i) Any portable ladder used as a regular means of access between floors or other levels in any building or other structure shall be nailed or otherwise securely fastened in place. Such a ladder shall extend at least 36 inches above the upper floor, level or landing or handholds shall be provided at such upper levels to afford safe means of access to or egress from the ladder. Such a ladder shall be inclined a maximum of three inches for each foot of rise.
Plaintiff also argues that, even though this violation of 12 NYCRR § 23–1.21(b)(4)(i) was not asserted in its bill of particulars, plaintiff should not be deprived of raising this violation for the first time in this motion. According to Kelleir v. Supreme Industrial Park, LLC, 293 A.D.2d 513 (2d Dept 2002), the Second Department allowed plaintiff to assert the violation of a specific Industrial Code for its Labor Law § 241(6) claim for the first time in the “opposition to the defendants' motion for summary judgment.” (Kelleir, 293 A.D.2d at 513.) Furthermore, the Second Department asserted that “a failure to identify the Code provision in the complaint or bill of particulars is not fatal to such claim” provided that the “belated allegation of a violation of ... (the Industrial Code) involved no new factual allegations, raised no new theories of liability, and caused no prejudice to the defendants ( Id. at 514, citing Noetzell v. Park Avenue Hall Housing Development Fund Corp., 271 A.D.2d 231, 232–33 (1st Dept 2000).)
Here, plaintiff's belated allegation that12 NYCRR § 23–1.21(b)(4)(i) was violated involves no new factual allegations, raised no new theories of liability, and caused no prejudice to defendants. (Kelleir, 293 A.D.2d at 514.) Thus, plaintiff is allowed to assert its allegation that 12 NYCRR § 23–1.21(b)(4)(i) was violated.
The wooden, A-frame ladder used by plaintiff was an eight foot ladder. For defendants to be in compliance with this provision, this ladder should have been nailed or securely fastened in place; there is no indication that was the case here. According to plaintiff's testimony, even though the ladder was not securely fasted in place, plaintiff leaned the ladder at an angle in order to lock it in position to prevent the ladder from moving. There is an issue of fact as to whether this ladder was being used as a means of access between the eighth floor and the roof or whether the ladder was being used to perform work in a crawl space and not providing access between floors. However, this issue of fact is irrelevant because the fact that the ladder was not secured in place is the not the proximate cause here. The proximate cause of plaintiff's alleged accident, as shown above, is the failure of defendants to provide a safe ladder and that failure proximately caused plaintiff's alleged accident. Therefore, defendants did not violate 12 NYCRR § 23–1.21(b)(4)(i) here.
In summary, defendants violated Labor Law § 241(6) as a result of violating 12 NYCRR § § 23–1.21(b)(1) and 23–1.21(b)(3), and these violations proximately caused plaintiff's alleged accident. However, defendants did not violate 12 NYCRR § § 23–1.21(b)(4)(iv) and 23–1.21(b)(4)(i) in its Labor Law § 241(6) claim.
B. Whether Contributory Negligence Is a Defense Under Labor Law § 241(6)
Labor Law § 241(6) is different than Labor Law § 240(1) with regards to contributory and comparative negligence. As seen above, a plaintiff's contributory negligence has “no consequence,” and, thus not a defense under Labor Law § 240(1). (Rocovick, 78 N.Y.2d at 513.) On the contrary, “contributory and comparative negligence are valid defenses to claims asserted under” under Labor Law § 241(6). (Ross, 81 N.Y.2d at 502 n. 4.). Additionally, the Second Department has asserted that “comparative negligence of a plaintiff is a defense to a cause of action based upon Labor Law § 241(6), so as to preclude the award of summary judgment to a plaintiff on that cause of action.” (Kozlowski v. Ripin, 60 AD3d 638, 639 (2d Dept 2009).) In essence, “culpable conduct of the injured person is relevant” under Labor Law § 241(6). (Rocovich, 78 N.Y.2d at 512.) Therefore, defendants, here, are correct in their argument that plaintiff's comparative negligence needs to be considered in relation to the issue of liability under Labor Law § 241(6) because comparative negligence is, in fact, a defense under Labor Law § 241(6).
Summary judgment can only be granted when there are no issues of material facts to be resolved at trial. ( See Andre, 35 N.Y.2d at 364.) Here, many issues of fact arise when considering whether plaintiff was comparatively negligent in his use of the wooden, A-frame ladder; and, summary judgment cannot be granted.
The first issue of fact is whether the ladder was defective before its use or whether the ladder became defective and broke while plaintiff was descending from it. According to plaintiff, he had checked the ladder and it seemed all right to him. On the contrary, according to defendants, the ladder was already broken and the clean up guys had put it in the middle of the floor with the garbage. In addition, defendants noted that plaintiff admitted in his deposition testimony that the normal procedure is to check a ladder before using it to make sure that it contained a metal hinge bracing the two pieces of the ladder, and to make sure that each of the ladder's feet contained a flat piece of rubber or plastic. Defendants argued that plaintiff had full knowledge of what a properly constructed A-frame ladder comprised. Furthermore, plaintiff testified that there was no rubber or plastic feet on the wooden, A-frame ladder that he used, instead, the ladder was just wood. According to this testimony given by plaintiff, the wooden, A-frame ladder used was technically not a proper ladder because it was missing the rubber or plastic feet. In essence, the testimony with regards to the condition of the wooden, A-frame ladder used by plaintiff is contradictory; and there is an issue of material fact of whether the ladder was defective before plaintiff used it or became defective while plaintiff was using it.
The second issue is whether plaintiff removed the ladder from the garbage or whether one of defendants' employees provided plaintiff with the ladder. According to plaintiff, “somebody from Tahoe” handed them an eight foot, A-frame, wooden ladder. On the contrary, according to defendants, the ladder was already broken, the clean up guys had put the ladder in the middle of the floor with the garbage, and that the plumber removed the ladder from the garbage. This issue of fact is relevant because if plaintiff knew that the ladder was defective and came from the garbage, and plaintiff continued to use the defective ladder, then plaintiff is negligent in his use of a known defective ladder. However, the testimony is contradictory as whether plaintiff removed the ladder himself or whether the ladder was provided to him by defendants' employee; and there is an issue of material fact of whether plaintiff knew that the ladder was defective before its use or not.
The last issue of fact is whether plaintiff failed to use the available safe ladders provided by his employer, Bass Plumbing, and as a result, plaintiff's negligence contributed to his alleged accident. Plaintiff testified that there were ladders provided by Bass Plumbing on this project as well as ladders provided and owned by defendants. On the contrary, Gurino testified on behalf of defendants that Tahoe did not provide any ladders at the construction site and that he did know who owned the ladder that plaintiff had used at the time of the alleged accident. Plaintiff also testified that normally the ladders from Bass Plumbing were labeled with “Bass,” are blue and yellow in color, and are constructed of aluminum or fiberglass, not wood. According to Iervolino, who testified on behalf of Bass Plumbing, Bass Plumbing provided its ladders on the job site. Thus, Bass Plumbing ladders were available to plaintiff on the job site. In addition, Iervolino testified that Bass Plumbing has a policy against using wood ladders, and, instead, Bass Plumbing only used fiberglass ladders. Based on this testimony, plaintiff should have known not to use a wooden ladder. There is a question of fact as to why plaintiff did not use the other available safe ladders, especially those provided by Bass Plumbing, and instead used a wooden, A-frame ladder, that would have been against Bass Plumbing's policy to do so.
Therefore, issues of material facts exist as to whether plaintiff was comparatively negligent in using the wooden, A-frame ladder at the time of his alleged accident; and, summary judgment cannot be granted.
C. Conclusion as to Labor Law § 241(6)
Even though defendants violated Labor Law § 241(6) as a result of violating 12 NYCRR § § 23–1.21(b)(1) and 23–1.21(b)(3), and these violations proximately caused plaintiff's alleged accident, and defendants did not violate 12 NYCRR § § 23–1.21(b)(4)(iv) and 23–1.21(b)(4)(i), the real issue is whether plaintiff was comparatively negligent. As shown above, issues of material facts exist as to whether plaintiff was comparatively negligent in using the wooden, A-frame ladder at the time of his alleged accident. Therefore, summary judgment cannot be granted as to the issue of liability under Labor Law § 241(6).
III. Whether Defendants' Affirmative Defenses Should Be Dismissed
Plaintiff argues the following: 1. that defendants' first, second, seventh, ninth, tenth, eleventh, twelfth, and nineteenth affirmative defenses should be dismissed because comparative negligence and /or culpable conduct on the part of plaintiff is not a defense; 2. that defendants' fifth and eighth affirmative defenses should be dismissed because contributory negligence is not a defense; 3. that defendants' fifth and eighth affirmative defenses should be dismissed because defendants did not identify “named parties and other over whom plaintiff could have obtained personal jurisdiction with due diligence”; 4. that defendants' third, fourth, fifteenth, sixteenth, and seventeenth affirmative defenses should be dismissed because Labor Law § 240(1) imposes liability even where an owner exercised no supervision, control, or direction of the work being performed; 5. that defendants' thirteenth affirmative defense should be dismissed because defendants did not demonstrate that the complaint is barred by laches or waiver and that plaintiff is equitably estopped from asserting such claims or cause of action against defendants; 6. that defendants' fourteenth affirmative defense should be dismissed because defendants did not allege which indispensable parties plaintiff failed to identify, join, and include in this action; and 7. that defendants' eighteenth affirmative defense should be dismissed as frivolous and designed to harass plaintiff because defendants did not articulate or submit evidence that “(p) laintiff's injuries were caused directly, solely, and proximately by allergies, sensitivities, medical conditions and idiosyncrasies peculiar to (p) laintiff not found in the general public, they are unknown, unknowable (,) or reasonable foreseeable to the (d) efendants.”
In opposition, defendants assert that the observable defect was the cause of plaintiff's alleged accident, and because plaintiff ignored the defect and forewent the use of Bass's own, proper safety devices, plaintiff was negligent in his use of the wooden, A-frame ladder.
In this decision, this Court will only address defendants' third, fourth, fifteenth, sixteenth, and seventeenth affirmative defenses because the issue that Labor Law § 240(1) imposes liability even where an owner exercised no supervision, control, or direction of the work being performed was argued by both plaintiff and defendants in their motion papers as seen in relation to the issue of liability under Labor Law § 240(1).
As stated above, it is well established that the duty imposed by Labor Law § 240(1) “is nondelegable and that an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work.” (Ross, 81 N.Y.2d at 500;see also Rocovick, 78 N.Y.2d at 513.) As stated above, the fact that Orati and Gurino were not present at the location at the time of Murphy's alleged accident, and that it is unknown as to whether Korn or the clean up guys were present at the time of the alleged accident, is irrelevant because the duty to provide safe ladders to its employees is imposed even if defendants failed to exercise supervision or control over the work. Therefore, as shown above, defendants violated Labor Law § 240(1) by breaching their nondelegable duty to plaintiff to provide safe ladders at their construction site and this failure to provide a safe ladder was found to be the proximate cause of plaintiff's alleged accident. Therefore, defendants' third, fourth, fifteenth, sixteenth, and seventeenth affirmative defenses will be dismissed because Labor Law § 240(1) imposes liability even where an owner exercised no supervision, control, or direction of the work being performed.
Even though it has been determined above that contributory negligence is not a defense under Labor Law § 240(1) and that contributory negligence is a defense under Labor Law § 241(6), this Court will not address defendants' affirmative defenses with regards to contributory negligence because plaintiff has failed to assert which affirmative defenses apply to Labor Law § 240(1) and which affirmative defenses apply to Labor Law § 241(6).
Therefore, plaintiff's motion to dismiss defendants' third, fourth, fifteenth, sixteenth, and seventeenth affirmative defenses will be granted, and plaintiff's motion to dismiss the remaining affirmative defenses is denied.
Conclusion
For the reasons set forth above, plaintiff's motion for an order pursuant to CPLR § 3212 granting summary judgment is granted in its entirety on the issue of liability under Labor Law § 240(1), and is denied in its entirety on the issue of liability under Labor Law § 241(6). For the reasons set forth above, plaintiff's motion to dismiss the affirmative defenses raised in defendants' Answer is granted in part and denied in part.
This constitutes the decision and order of this court.