Opinion
2015-07-09
Alan P. SALZER et al., Appellants, v. BENDERSON DEVELOPMENT COMPANY, LLC, et al., Defendants and ThirdParty Plaintiffs–Respondents; STC Mechanical, LLC, Third–Party Defendant–Respondent.
Pentkowski Pastore & Freestone, Clifton Park (Michael J. Hutter of Powers & Santola, LLP, Albany, of counsel), for appellants. Wilson Elser Moskowitz Edelmen & Dicker, LLP, Albany (Joseph T. Perkins of counsel), for defendants and third-party plaintiffs-respondents.
Pentkowski Pastore & Freestone, Clifton Park (Michael J. Hutter of Powers & Santola, LLP, Albany, of counsel), for appellants. Wilson Elser Moskowitz Edelmen & Dicker, LLP, Albany (Joseph T. Perkins of counsel), for defendants and third-party plaintiffs-respondents.
Goldberg Segalla, LLP, Albany (Matthew S. Lerner of counsel), for third-party defendant-respondent.
Before: McCARTHY, J.P., EGAN JR., LYNCH and DEVINE, JJ.
DEVINE, J.
Appeal from an order of the Supreme Court (Catena, J.), entered June 19, 2014 in Montgomery County, which, among other things, granted defendants' cross motion for summary judgment dismissing the complaint.
Plaintiff Alan P. Salzer (hereinafter plaintiff) partially owned and acted as a field supervisor for third-party defendant, a construction firm. In November 2011, plaintiff and others employed by third-party defendant were installing rooftop heating and air conditioning units at a shopping complex owned and/or developed by defendants. Plaintiff was standing on the roof of one of the buildings in the complex, using hand signals to direct a crane operator who was maneuvering one of the units into position. Plaintiff stumbled while turning to face the crane operator and, in so doing, fell from the roof and was injured.
Plaintiff and his spouse, derivatively, commenced this action against defendants alleging violations of Labor Law §§ 200, 240(1) and 241(6) as well as common-law negligence. Defendants, in turn, impleaded third-party defendant seeking indemnification and contribution. Plaintiffs thereafter moved for partial summary judgment on the issue of liability under the Labor Law § 240(1) claim. Defendants cross-moved for summary judgment dismissing the complaint or, in the alternative, summary judgment granting the relief sought in the third-party complaint. Third-party defendant also filed a cross motion, and, while third-party defendant now styles that application as one for summary judgment dismissing the complaint in its entirety, the motion papers reflect that it was one for partial summary judgment dismissing only the Labor Law § 240(1) claim. Supreme Court granted the cross motions and dismissed the complaint.Plaintiffs now appeal, focusing solely upon the dismissal of their Labor Law §§ 240(1) and 241(6) claims.
Plaintiffs do not challenge the dismissal of their Labor Law § 200 and common-law negligence claims on appeal, and we therefore deem any such arguments to have been abandoned ( see Boots v. Bette & Cring, LLC, 124 A.D.3d 1119, 1119 n. 1, 3 N.Y.S.3d 141 [2015] ).
Labor Law § 240(1) requires contractors and property owners to provide safety devices adequate to protect construction workers against elevation-related hazards, and “[t]he failure to do so results in liability for any injuries proximately caused thereby” (Silvia v. Bow Tie Partners, LLC, 77 A.D.3d 1143, 1144, 909 N.Y.S.2d 202 [2010]; see Jackson v. Heitman Funds/191 Colonie LLC, 111 A.D.3d 1208, 1211, 976 N.Y.S.2d 283 [2013] ). Plaintiff was so employed and may invoke the provisions of the statute, notwithstanding that he was a part owner of third-party defendant ( see Van Buskirk v. State of New York, 303 A.D.2d 970, 971, 757 N.Y.S.2d 213 [2003] ). That being said, the fact that plaintiff was “injured while working above ground does not [necessarily] mean that the injury resulted from an elevation-related risk contemplated by” Labor Law § 240(1) (Striegel v. Hillcrest Hgts. Dev. Corp., 100 N.Y.2d 974, 977, 768 N.Y.S.2d 727, 800 N.E.2d 1093 [2003]; see Auchampaugh v. Syracuse Univ., 57 A.D.3d 1291, 1293, 870 N.Y.S.2d 564 [2008] ). It was, accordingly, incumbent upon him to show that his injuries resulted from such a hazard ( see Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157, 960 N.E.2d 948 [2011] ).
Supreme Court determined that his injuries did not flow from an elevation-related hazard, as plaintiff was not “required to work at an elevation” and could have stayed away from the edge of the roof by directing the crane operator via cell phone (Broggy v. Rockefeller Group, Inc., 8 N.Y.3d 675, 681, 839 N.Y.S.2d 714, 870 N.E.2d 1144 [2007] ). This determination, however, ran against the undisputed proof that plaintiff had to work somewhere on the roof in order to signal the crane operator and that hand signaling was the usual method of doing so ( see Soltero v. City of New York, 93 A.D.3d 578, 578, 940 N.Y.S.2d 491 [2012]; cf. Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d at 339–340, 937 N.Y.S.2d 157, 960 N.E.2d 948; Broggy v. Rockefeller Group, Inc., 8 N.Y.3d at 681, 839 N.Y.S.2d 714, 870 N.E.2d 1144). His decision to employ an accepted method of signaling while performing necessary work on the roof, even if a safer method existed, constituted nothing more than “comparative fault that is not a defense under the statute” (Williams v. Town of Pittstown, 100 A.D.3d 1250, 1252, 955 N.Y.S.2d 234 [2012]; see Sulem v. B.T.R. E. Greenbush, 187 A.D.2d 816, 818, 589 N.Y.S.2d 969 [1992] ).
Third-party defendant's assertion that plaintiff was provided with appropriate safety devices is similarly unavailing. A parapet wall surrounded the edge of the roof, but “a permanent appurtenance to a building does not normally constitute the functional equivalent of a scaffold or other safety device within the meaning of the statute” (Yost v. Quartararo, 64 A.D.3d 1073, 1074, 883 N.Y.S.2d 630 [2009] ). Plaintiff can also not be faulted for failing to use an available safety harness, as he did not have a sufficient length of rope to tie it off securely ( see Balzer v. City of New York, 61 A.D.3d 796, 797–798, 877 N.Y.S.2d 435 [2009]; Desrosiers v. Barry, Bette & Led Duke, Inc., 189 A.D.2d 947, 948, 592 N.Y.S.2d 826 [1993] ). Contrary to third-party defendant's further suggestion, the failure to identify another safety device that could have prevented plaintiff's fall is irrelevant in establishing liability under a Labor Law § 240(1) claim ( see Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 523–524, 493 N.Y.S.2d 102, 482 N.E.2d 898 [1985] ). Thus, inasmuch as plaintiff fell because his work required him to work at a height, and “there is no view of the evidence to dispute or contradict a finding that the absence of safety equipment was a proximate cause of [plaintiff's] injuries,” plaintiffs' motion for partial summary judgment should have been granted (Sulem v. B.T.R. E. Greenbush, 187 A.D.2d at 818, 589 N.Y.S.2d 969; see Striegel v. Hillcrest Hgts. Dev. Corp., 100 N.Y.2d at 978, 768 N.Y.S.2d 727, 800 N.E.2d 1093; Yost v. Quartararo, 64 A.D.3d at 1074–1075, 883 N.Y.S.2d 630; Tassone v. Mid–Valley Oil Co., 291 A.D.2d 623, 624, 738 N.Y.S.2d 103 [2002], lv. denied100 N.Y.2d 502, 760 N.Y.S.2d 765, 790 N.E.2d 1194 [2003] ).
Plaintiff testified that he lost his balance while he was turning to face the crane operator and fell over the wall, but did not recall exactly how the fall occurred. The crane operator confirmed that plaintiff had fallen at the time and place he described. Under these circumstances, an affidavit of an expert who questioned whether a simple stumble would have been sufficient to cause the fall did not raise a credibility issue that would preclude a grant of summary judgment to plaintiffs ( see Hall v. Conway, 241 A.D.2d 592, 593, 659 N.Y.S.2d 367 [1997]; Rodriguez v. Forest City Jay St. Assoc., 234 A.D.2d 68, 69–70, 650 N.Y.S.2d 229 [1996] ).
We need not address the parties' contentions regarding Labor Law § 241(6), which are rendered academic in light of the grant of summary judgment upon the Labor Law § 240(1) claim ( see Yost v. Quartararo, 64 A.D.3d at 1075, 883 N.Y.S.2d 630; Covey v. Iroquois Gas Transmission Sys., 218 A.D.2d 197, 201, 637 N.Y.S.2d 992 [1996], affd. 89 N.Y.2d 952, 655 N.Y.S.2d 854, 678 N.E.2d 466 [1997] ). As a final matter, defendants have abandoned any contentions regarding their alternative request for summary judgment on the third-party complaint by failing to advance them in their brief on appeal ( see Huen N.Y., Inc. v. Board of Educ. Clinton Cent. School Dist., 67 A.D.3d 1337, 1337–1338, 890 N.Y.S.2d 748 [2009] ).
ORDERED that the order is modified, on the law, with costs to plaintiffs, by reversing so much thereof as (1) denied plaintiffs' motion for partial summary judgment, (2) granted defendants' cross motion for summary judgment dismissing the Labor Law § 240(1) cause of action, and (3) granted third-party defendant's cross motion for partial summary judgment; cross motions denied to said extent, motion granted and summary judgment awarded to plaintiffs on the Labor Law § 240(1) cause of action; and, as so modified, affirmed.