To be Argued by:
SIM R. SHAPIRO, ESQ.
(Time Requested: 15 Minutes)
Docket No. APL-2013-00280
Appellate Division Docket No. CA 12-01962
Erie County Clerk’s Index Nos. 2008-3306 and 2008-3306-TP3
Court of Appeals
of the
State of New York
MARC A. NICOMETI,
Plaintiff-Appellant-Respondent,
– against –
THE VINEYARDS OF FREDONIA, LLC, WINTER-PFOHL, INC.,
Defendants-Respondents-Appellants,
THOMAS WHITNEY and SCOTT PFOHL,
Defendants.
–––––––––––––––––––––––––––––––
SCOTT PFOHL,
Third-Party Plaintiff,
WINTER-PFOHL, INC.,
Third-Party Plaintiff-Respondent-Appellant,
– against –
WESTERN NEW YORK PLUMBING-ELLICOTT PLUMBING
AND REMODELING CO., INC.,
Third-Party Defendant-Respondent-Appellant.
BRIEF FOR THIRD-PARTY DEFENDANT-RESPONDENT-
APPELLANT WESTERN NEW YORK PLUMBING
Of Counsel:
Sim R. Shapiro, Esq.
Michael V. McLaughlin, Esq.
BAXTER SMITH & SHAPIRO, P.C.
Attorneys for Third-Party
Defendant-Respondent-Appellant
182 Dwyer Street
West Seneca, New York 14224
Tel.: (716) 854-6140
Fax: (716) 854-6540
May 29, 2014
i
DISCLOSURE STATEMENT PURSUANT TO
§500.1(F) OF THE RULES OF THE COURT OF APPEALS
Pursuant to §500.1(f) of the Rules of the Court of Appeals, Western New
York Plumbing-Ellicott Plumbing and Remodeling Co., Inc. states that no parents,
subsidiaries or affiliates exist.
ii
TABLE OF CONTENTS
Page(s)
STATEMENT PURSUANT TO RULE §500.1(f)………………………… i
TABLE OF CONTENTS………………………………………………….. ii
TABLE OF CITATIONS………………………………………………….. iii
QUESTIONS PRESENTED………………………………………………. v
PRELIMINARY STATEMENT…………………………………………... 1
JURISDICTIONAL STATEMENT…………………………………….…. 3
STATEMENT OF FACTS………………………………………………… 4
ARGUMENT………………………………………………………………. 7
I. LABOR LAW §240(1) DOES NOT APPLY TO
THIS MATTER AS IT DOES NOT EXTEND TO
PROTECTING A WORKER AGAINST THE
HAZARD OF SLIPPING ON ICE, AS THAT IS
NOT AN ELEVATION-RELATED RISK
CONCLUSION……………………………………………… 7
II. IF IT IS DETERMINED THAT LABOR LAW
§240(1) APPLIES, THERE IS STILL A TRIABLE
ISSUE OF FACT WHETHER PLAINTIFF
WAS THE SOLE PROXIMATE CAUSE OF
HIS INJURIES……………………………………………… 14
CONCLUSION…………………………………………………………….. 19
iii
TABLE OF CITATIONS
Page(s)
Andrews v. Ryan Homes, Inc.,
27 A.D.3d 1197, 812 N.Y.S.2d 729 (4th Dep’t 2006) …………… 15
Blake v. Neighborhood Hous. Services of New York City, Inc.,
1 N.Y.3d 280, 803 N.E.2d 757, 771 N.Y.S.2d 484 (2003) ……… 14
Buckley v. J.A. Jones/GMO,
38 A.D.3d 461, 832 N.Y.S.2d 560 (1st Dep’t 2007) ……………. 17
Cohen v. Memorial Sloan-Kettering Cancer Center,
11 N.Y.3d 823, 897 N.E.2d 1059, 868 N.Y.S.2d 578 (2008) …… 8
Danielewicz v. Klewin Bldg. Co., Inc.,
39 A.D.3d 1194, 834 N.Y.S.2d 813 (4th Dep’t 2007) …………… 17
Doan v. Aiken & McGlauklin, Inc.,
217 A.D.2d 908, 629 N.Y.S.2d 921 (4th Dep’t 1995) …………… 18
Duda v. John W. Rouse Construction Corp.,
32 N.Y.2d 405, 298 N.E.2d 667, 345 N.Y.S.2d 524 (1973) …….. 14
Gordon v. E. Ry. Supply Inc.,
82 N.Y.2d 555, 626 N.E.2d 912, 606 N.Y.S.2d 127 (1993) ……… 15
Hamill v. Mutual of America Investment Corp.,
79 A.D.3d 478, 913 N.Y.S.2d 62 (1st Dep’t 2010) ………………. 17
Kumar v. Stahlunt Assoc.,
3 A.D.3d 330, 769 N.Y.S.2d 884 (1st Dep’t 2004) ………………. 17
Macutek v. Lansing,
226 A.D.2d 964, 640 N.Y.S.2d 693 (3d Dep’t 1996) …………….. 18
Matos v. Garden State Brick Face of Middle Village, Inc.,
272 A.D.2d 70, 707 N.Y.S.2d 169 (1st Dep’t 2000) ……………… 12,
13, 18
iv
McNabb v. Oot Bros., Inc.,
64 A.D.3d 1237, 882 N.Y.S.2d 792 (4th Dep’t 2009) …………… 11, 12
Melber v. 6333 Main St., Inc.,
91 N.Y.2d 759, 698 N.E.2d 933, 676 N.Y.S.2d 104 (1998) ……… 8, 9,
10
Narducci v. Manhasset Bay Assocs.,
96 N.Y.2d 259, 750 N.E.2d 1085, 727 N.Y.S.2d 37 (2001) ……… 7, 8
Petrocelli v. Tishman Constr. Co.,
19 A.D.3d 145, 797 N.Y.S.2d 12 (1st Dep’t 2005) ………………. 17
Rocovich v. Consolidated Edison Co.,
78 N.Y.2d 509, 583 N.E.2d 932, 577 N.Y.S.2d 219 (1991) ……… 8
Ross v. Curtis-Palmer Hydro-Elec. Co.,
81 N.Y.2d 494, 618 N.E.2d 82, 601 N.Y.S.2d 49 (1993) ………… 7, 8
Russell v. Widewaters South Bay Road Assoc., LLP,
289 A.D.2d 1025, 735 N.Y.S.2d 900 (4th Dep’t 2001) …………… 11
Thome v. Benchmark Main Transit Assocs., LLC,
86 A.D.3d 938, 927 N.Y.S.2d 260 (4th Dep’t 2011) ……………… 15
Weininger v. Hagedorn & Co.,
91 N.Y.2d 958, 695 N.E.2d 709, 672 N.Y.S.2d 840 (1998) ………. 14
v
QUESTIONS PRESENTED
1. Is Labor Law §240(1) applicable to the facts of this case where plaintiff
slipped on ice and fell while wearing stilts, and did defendants fail to
provide proper protection to plaintiff under these circumstances?
2. If Labor Law §240(1) is found to be applicable to the facts of this case, did
defendants raise material questions of fact whether plaintiff was the sole
proximate cause of his injury, whether defendants violated Labor Law
§240(1) or whether such alleged violation was a proximate cause of
plaintiff’s injury?
1
PRELIMINARY STATEMENT
This Brief is submitted on behalf of the Third-Party Defendant-Respondent-
Appellant, Western New York Plumbing-Ellicott Plumbing and Remodeling Co.,
Inc. (“WNY Plumbing”). This action was brought based upon personal injuries
allegedly sustained by plaintiff-appellant-respondent, Marc A. Nicometi
(“plaintiff” or “Nicometi”), when Mr. Nicometi slipped on an allegedly icy floor
while wearing stilts at premises owned by The Vineyards of Fredonia, LLC. (“The
Vineyards”). [R. 29-38, 48-54].
Plaintiff thereafter moved for partial summary judgment on liability under
Labor Law §240(1). The defendants/third-party plaintiffs-respondents-Appellants,
Scott Pfohl (“Pfohl”) and Winter-Pfohl, Inc. (“Winter-Pfohl”) cross-moved for
summary judgment seeking to dismiss Plaintiff’s Labor Law §240(1) claim. WNY
Plumbing opposed Mr. Nicometi’s motion. The Supreme Court, Erie County,
(Hon. Timothy J. Drury, JSC) granted plaintiff’s motion and denied Winter-Pfohl’s
cross-motion. [R. 15-17].
By Notice of Appeal dated June 22, 2012, WNY Plumbing appealed Justice
Drury’s Order. [R. 3-6]. Both Winter-Pfohl and The Vineyards also appealed this
Order. [R.7-14].
By Memorandum and Order entered June 14, 2013, the Appellate Division,
Fourth Department modified the Order of the Supreme Court by denying plaintiff’s
2
motion. The Appellate Division, Fourth Department held that, while the Supreme
Court properly concluded that Labor Law §240(1) applied to Mr. Nicometi’s claim
because working on stilts is a gravity-related risk, there was a triable issue of fact
as to whether Mr. Nicometi’s actions were the sole proximate cause of his injuries.
[R. 5a-9a]. WNY Plumbing respectfully submits that the Appellate Division,
Fourth Department erred in holding that the circumstances of Mr. Nicometi’s
incident are covered by Labor Law §240(1).
In the instant matter, the presence of ice on the floor where Mr. Nicometi
was working was not the risk that brought about the need for the stilts in the first
instance. Additionally, the accident was not the result of the type of hazard that
comes within the purview of Labor Law §240(1). Rather, the accident resulted
from the usual and ordinary dangers at a construction site, namely ice or slippery
substances, to which the statutorily prescribed protections of Labor Law §240(1)
do not extend.
Further, there remain triable issues of fact regarding whether plaintiff’s
conduct was the sole proximate cause of his injuries. The testimony of plaintiff’s
supervisor, Raymond Hilliker, reveals that he specifically told plaintiff and his
coworkers not to insulate in the area where the ice was present. Plaintiff failed to
heed this direction and, therefore, caused his own injuries.
3
JURISDICTIONAL STATEMENT
This Court has jurisdiction over this appeal pursuant to CPLR §5602(b)(l).
The Appellate Division, Fourth Department issued a non-final order, with two
Justices dissenting, on a prior appeal in the action, finding that a question of law
has arisen that ought to be reviewed by this Court, and therefore granted leave to
appeal to this Court.
4
STATEMENT OF FACTS
The Vineyards hired Winter-Pfohl as its general contractor to build ten
buildings in Fredonia, New York, including the building where the incident that is
the subject of this action is alleged to have occurred. [R. 49, 340]. Winter-Pfohl
hired 84 Lumber to install insulation at the worksite. [R.405]. At the time of the
incident, Marc A. Nicometi was working as an employee of 84 Lumber as an
insulation installer at The Vineyards worksite. [R. 100, 115-16, 131]. Plaintiff and
two co-workers, Collin Grzeskowiak and Russell Elsworth, were supervised by
Ray Hilliker, a manager at 84 Lumber. [R. 100, 114-16, 131].
The plaintiff testified that on the day of the accident, he was using stilts to
install insulation between the rafters in the ceiling. [R. 143-44, 165-66]. He stated
that the stilts were adjusted so that the bottoms of his feet were approximately
three to five feet above the floor. [R. 121]. They were made of some sort of metal
and had a rubber foot-shaped place to strap a work boot into. [R. 167-75]. Mr.
Nicometi had never used a ladder to install insulation and had only used a scaffold
once before. [R. 179, 287-88]. He testified that stilts were the appropriate device
for the project at The Vineyards and that he had all of the materials, tools and
equipment he needed to do his job. [R. 182-83]. When asked about the stilts he
was using, plaintiff testified that he was not aware of any defects:
5
Q. Were there any parts missing from [the stilts]?
A. Not that I know of.
Q. To your knowledge had they broken at all before you used them?
A. Not to my knowledge.
Q. To your knowledge were they in need of any repair or adjustment
before you used the?
A. No.
[R. 196].
Mr. Nicometi testified that on the day of the accident, he saw some water
and ice on the floor, and he had a conversation with his supervisor, Raymond
Hilliker, as to where the water and ice had come from. [R.151-152]. Plaintiff
believed that walking around using stilts on a floor with ice patches would be
hazardous to his health and expressed his concern to Mr. Hilliker. [R. 281].
Plaintiff also heard Mr. Hilliker speak with a man he believed to be the General
Contractor, telling him that there was ice on the floor and that he needed to do
something about it. [R. 155-158]. Plaintiff heard the person he believed to be the
General Contractor say that he would take care of it. [R. 158].
Mr. Hilliker testified that on the date of the incident he arrived at the work
site before the plaintiff. Mr. Hilliker was not aware of any employees of any of the
other contractors being present that morning inside the building where the 84
6
Lumber employees were working. [R. 289]. Mr. Hilliker saw that there was “a
very small area” of ice on the floor in the building where they were working. [R.
587]. Mr. Hilliker stated that he directed all three of his installers, including
plaintiff, “do not insulate that area.” [R. 589]. After he told his installers not to
insulate that area, they agreed that they would not, stating, “[o]kay. We won’t.”
[R.591].
Mr. Hilliker testified that he was present in the doorway of the room where
the plaintiff was working and that he had begun to walk toward Mr. Nicometi to
tell him, once again, to get out of the icy area. It was then that the Mr. Nicometi
slipped and fell onto a bag of insulation. [R. 572-74, 591-92].
Mr. Nicometi testified that, as he swung a hammer-tacker, which is a cross
between a hammer and a stapler that it used to inject a staple into the insulation, he
stepped forward onto ice and slipped, falling onto a bag of insulation on the floor.
[R. 71-72, 194]. Mr. Nicometi testified, “I slipped, my foot came out from
underneath me.” [R. 194].
7
ARGUMENT
POINT I
LABOR LAW §240(1) DOES NOT APPLY TO THIS MATTER AS IT
DOES NOT EXTEND TO PROTECTING A WORKER AGAINST
THE HAZARD OF SLIPPING ON ICE, AS THAT IS NOT AN
ELEVATION-RELATED RISK
As this Honorable Court is well aware, not every fall by every worker at a
construction site triggers the statutory protections of Labor Law §240(1).
Such
liability depends upon the “existence of a hazard contemplated in section 240(1)”
and upon “the failure to use, or the inadequacy of, a safety device of the kind
enumerated therein.” Narducci v. Manhasset Bay Assocs., 96 N.Y.2d 259, 267,
750 N.E.2d 1085, 727 N.Y.S.2d 37 (2001) citing Ross v. Curtis-Palmer Hydro-
Elec. Co., 81 N.Y.2d 494, 501, 618 N.E.2d 82, 601 N.Y.S.2d 49 (1993). In this
case, the plaintiff has failed to demonstrate that either of the requirements to
support a prima fascia case under Labor Law §240(1) can be satisfied.
“Labor Law §240(1) was designed to prevent those types of accidents in
which the scaffold, hoist, stay, ladder or other protective device proved inadequate
to shield the injured worker from harm directly flowing from the application of the
force of gravity to an object or person.” Ross v. Curtis-Palmer Hydro-Elec., Co.,
81 N.Y.2d 494, 501, 618 N.E.2d 82, 601 N.Y.S.2d 49 (1993) (emphasis in
original). Additionally, there is no liability under Labor Law §240(1) if the
8
worker’s injury is caused by a hazard that was not contemplated by the State
Legislature in enacting the statute. See Cohen v. Memorial Sloan-Kettering Cancer
Center, 11 N.Y.3d 823, 825, 897 N.E.2d 1059, 868 N.Y.S.2d 578 (2008);
Narducci, 96 N.Y.2d at 267 citing Rocovich v. Consolidated Edison Co., 78
N.Y.2d 509, 583 N.E.2d 932, 577 N.Y.S.2d 219 (1991).
The Court of Appeals in Rocovich described a hazard encompassed by
§240(1) of the Labor Law as one “related to the effects of gravity where protective
devices are called for … because of a difference between the elevation level of the
required work and a lower level.” Rocovich, 78 N.Y.2d at 514. These are the
“elevation-related risks” that the State Legislature designated to receive the special
protections afforded under Labor Law §240(1). Injuries from other types of
hazards are not protected under the statute even if they are caused by the absence
of a scaffold or other required safety device. See Ross, 81 N.Y.2d at 500 (“Labor
Law § 240(1) was aimed only at elevation-related hazards and that, accordingly,
injuries resulting from other types of hazards are not compensable under that
statute even if proximately caused by the absence of an adequate scaffold or other
required safety device.”)
The controlling case regarding tripping or slipping while utilizing stilts is
this Court’s decision in Melber v. 6333 Main Street, 91 N.Y.2d 759, 698 N.E.2d
9
933, 676 N.Y.S.2d 104 (1998), where the plaintiff, while using stilts, tripped on an
electrical conduit and fell. Therein, this Court ruled:
But here, as was the case in Ross, injury resulted from a
separate hazard – electrical conduit protruding from the
floor. Even if the stilts failed to avoid that pitfall,
“plaintiff’s injuries allegedly flowed from a deficiency in
the device that was ‘wholly unrelated to the hazard which
brought about its need in the first instance’” and did not
interfere with or increase the danger of injury in the
performance of his elevation-related task (Ross v. Curtis-
Palmer Hydro-Elec. Co., 81 N.Y.2d, at 501, supra,
quoting Ross v. Curtis-Palmer Hydro-Elec. Co., 180
A.D.2d 385, 394 [Mercure, J., dissenting in part]). Thus,
plaintiff must look elsewhere for his remedy.
Melber, 91 N.Y.2d at 763-764 (emphasis added).
In Melber, not only did this Court decline to award summary judgment to
the plaintiff, it dismissed the Labor Law §240(1) claim altogether:
To be sure, conduit protruding from an unfinished floor –
like a trough filled with hot oil – is a hazard in the
workplace against which employees should be protected.
However, neither the trough nor the conduit is a risk that
can be avoided by proper placement or utilization of one
of the devices listed in Labor Law §240(1). The
protective equipment envisioned by the statue is simply
not designed to avert the hazard plaintiff encountered
here.
Id. at 763.
Indeed, in Melber, this Court noted that, “[h]ad [the stilts] failed while
plaintiff was installing the metal studs in the top of the drywall – work requiring
10
the statute’s special protections – a different case would be presented.” Id. at 763-
764. However, the distinction to be made is not whether plaintiff was injured in
the course of actually performing construction at an elevation, but whether the
injury resulted from a hazard that is contemplated by the statute.
There is no qualitative difference between the electrical conduit in Melber
and the ice in the instant case. In each case, the risk — the electrical conduit or the
ice — could not be “avoided by proper placement or utilization of one of the
devices listed in Labor Law §240(1).” Melber, 91 N.Y.2d at 763. In both cases,
the injury resulted from the hazard at ground level, not from any alleged failure of
the stilts. Whether a person is on stilts or not, the risk posed by either an electrical
conduit or ice is the same. To the extent that there is a condition that caused the
incident, it was the ice, which is not the type of hazard contemplated by the statute.
This Court’s decision in Melber was clear in this regard, and WNY Plumbing
respectfully contends that the Appellate Division, Fourth Department erred when it
effectively rejected this Court’s decision in Melber.
Of critical importance is that neither here, nor in Melber, did plaintiff claim
that his stilts failed (e.g., that they buckled, bent, broke, came apart, collapsed,
etc.). Instead, Mr. Nicometi claimed that he slipped on ice, a condition, similar to
the one in Melber, “wholly unrelated to the hazard [i.e., installing insulation at
11
ceiling level] which brought about [the] need [for the stilts] in the first instance.”
Melber at 763-764.
This reasoning in Melber was followed by the Appellate Division, Fourth
Department in both Russell v. Widewaters S. Bay Rd. Assocs., LLP, 289 A.D.2d
1025, 735 N.Y.S.2d 900 (4th Dep’t 2001), and McNabb v. Oot Bros., Inc., 64
A.D.3d 1237, 882 N.Y.S.2d 792 (4th Dep’t 2009), which are analogous to the
instant case in that in both of those cases the plaintiff, while working on stilts,
tripped over an electrical cord. In Russell, the Appellate Division, Fourth
Department held:
Supreme Court properly granted that part of third-party
defendant’s cross motion seeking summary judgment
dismissing the Labor Law §240(1) claim. Plaintiff Dean
Russell, a subcontractor, tripped over an electrical cord
while working on stilts and, in doing so, “did not
encounter a hazard contemplated by the statute” (Melber
v. 6333 Main St., 91 N.Y.2d 759, 761).
Russell, 289 A.D.2d at 1025.
Similarly, in McNabb, plaintiff was working on stilts when he tripped over
an electrical cord, causing him to fall and sustain personal injuries. The Appellate
Division, Fourth Department held:
Contrary to the contention of plaintiff on his cross
appeal, the court properly dismissed the Labor Law
§240(1) claim against all defendants because the accident
does not fall within the purview of that statute (see
Melber v. 6333 Main St., 91 N.Y.2d 759, 763-764 [1998];
12
Russell v. Widewaters S. Bay Rd. Assoc., 289 A.D.2d
1025 [2001]).
McNabb, 64 A.D.3d at 1239.
In the instant matter, the facts are undisputed that the plaintiff fell when he
slipped on ice on the floor while wearing stilts. Mr. Nicometi did not fall off the
stilts, nor did the stilts fail or malfunction. Mr. Nicometi testified that there was
nothing wrong with his stilts and that he slipped and fell on an icy floor. [R. 194,
196]. There is no evidence in the Record, be it testimonial, documentary or
through expert opinion that the stilts were defective or had anything wrong with
them. Thus, not only was the plaintiff not exposed to any risk that any of the
safety devices enumerated in Labor Law §240(1) would have protected against, the
plaintiff has not pointed to any defect in the stilts altogether.
It is respectfully submitted that the risk of slipping on ice, like encountering
an electrical cord, a protruding conduit or a trough of hot oil, is not a risk that can
be avoided by proper placement or utilization of one of the devices enumerated in
Labor Law §240(1). The protective equipment enumerated in and envisioned by
the statute is not designed to avert the hazard that plaintiff allegedly encountered,
namely an icy floor.
In his brief, plaintiff cites Matos v. Garden State Brick Face, 272 A.D.2d 70,
707 N.Y.S.2d 169 (1st Dep’t 2000), in support of his contention that Labor Law
13
§240(1) should apply to his case. In Matos, the Appellate Division, First
Department read Melber as depending on the fact that the plaintiff was walking to
retrieve a tool, rather than performing work at a height:
Here, in distinction to Melber, where the plaintiff was
injured in a fall from stilts as he walked down a hallway
to retrieve a tool, plaintiff was injured in the course of
actually performing construction at an elevation.
272 A.D.2d at 70-71.
Respectfully, the Appellate Division, First Department misconstrued the
holding of Melber in its holding. The dispositive factor is whether the injury
resulted from a hazard that is contemplated by the statute.
Accordingly, plaintiff’s reliance on Matos is misplaced. The Court of
Appeals’ holding in Melber was clear, as evidenced by the later decisions of the
Appellate Division, Fourth Department in Russell and McNabb. The only
divergent decision — other than the instant case — is Matos. WNY Plumbing
respectfully submits that this Court should apply the clear holding of Melber and
determine that Mr. Nicometi’s incident is not covered by Labor Law §240(1).
14
POINT II
IF IT IS DETERMINED THAT LABOR LAW §240(1) APPLIES,
THERE IS STILL A TRIABLE ISSUE OF FACT AS TO WHETHER
PLAINTIFF WAS THE SOLE PROXIMATE CAUSE OF HIS INJURIES
There can be no liability under Labor Law §240(1) unless the injured party
shows that the defendant violated §240(1) of the Labor Law and that such violation
was the proximate cause of the plaintiff’s injuries. See, e.g. Blake v.
Neighborhood Hous. Serv. of New York City, Inc., 1 N.Y.3d 280, 289, 803 N.E.2d
757, 771 N.Y.S.2d 484 (2003). Labor Law §240(1) is violated when a contractor,
owner or agent thereof does not provide “proper protection” to a plaintiff and that
such failure caused the plaintiff’s injury. Id. at 289. Even assuming arguendo that
there is a violation of Labor Law §240(1), a plaintiff must show that the violation
was a “contributing cause of his fall.” Blake v. Neighborhood Hous. Serv. Of New
York City, Inc., 1 N.Y.3d at 289. See also Duda v. John W. Rouse Constr. Corp.,
32 N.Y.2d 405, 410, 298 N.E.2d 667, 345 N.Y.S.2d 524 (1973). Moreover, where
“a reasonable jury could [conclude] that a plaintiff’s actions were the sole
proximate cause of his injuries,” liability cannot be decided as a matter of law, but
must be submitted to the jury. Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 960,
695 N.E.2d 709, 672 N.Y.S.2d 840 (1998). Notably, where a defendant has offered
admissible evidence that a worker was injured while engaged in an activity that he
or she had been expressly warned against, there is, at least, an issue of fact as to
15
whether the plaintiff was a recalcitrant worker and, if so, whether such actions
were the sole proximate cause of the plaintiff’s injuries. See, e.g. Andrews v. Ryan
Homes, Inc., 27 A.D.3d 1197, 1198, 812 N.Y.S.2d 729 (4th Dep’t 2006); Thome v.
Benchmark Main Transit Assocs., LLC, 86 A.D.3d 938, 939-940, 927 N.Y.S.2d
260 (4th Dep’t 2011).
While the Appellate Division, Fourth Department found that Labor Law
§240(1) applies to this matter, it also found that there was a question of fact as to
whether the plaintiff’s own conduct — in using stilts to walk on a known icy
surface — was the sole proximate cause of his accident. See, e.g. Gordon v. E. Ry.
Supply Inc., 82 N.Y.2d 555, 562, 626 N.E.2d 912, 606 N.Y.S.2d 127 (1993)
(“plaintiff was working on a ladder and thus was subject to an ‘elevation-related
risk.’ The ladder did not prevent plaintiff from falling; thus the “core” objective of
section 240 (1) was not met. Accordingly, plaintiff is within the protection of the
statute if his injury was proximately caused by the risk”); see also Andrews v.
Ryan Homes, 27 A.D.3d 1197, 812 N.Y.S.2d 729 (4th Dep’t 2006).
There are clearly issues of fact as to whether the plaintiff’s actions were the
“sole proximate cause” of his injury. Notably, Mr. Nicometi’s supervisor, Mr.
Hilliker, testified that he told all three of his installers, including Mr. Nicometi:
“do not insulate that area.” [R. 589]. In addition, the plaintiff’s own testimony
establishes that he was aware of the presence of the ice and the danger it presented.
16
[R. 151-52, 281-90]. Furthermore, the plaintiff testified that he had a discussion
with his supervisor with regard to the safety concerns raised by the ice. [R. 157-
58, 290].
Thus, there are facts in the Record which establish that the Mr. Nicometi
negligently chose to disregard a known danger that he himself identified, as well as
the notice and instruction given by his supervisor, when he attempted to utilize the
stilts he was provided to walk on the open and obvious patch of ice, causing
himself to fall.
The device that Mr. Nicometi used clearly was not defective as he has
admitted that he fell when he slipped on ice. There was no failure or defect in the
stilts. [R. 196]. As such, the jury must be allowed to determine whether Mr.
Nicometi’s own conduct while using the stilts was the “sole proximate cause” of
his fall. As there is testimony that the plaintiff was expressly instructed by his
supervisor “do not insulate that area [where the ice was present]” [R. 589],
plaintiff’s motion should not have been granted.
Additionally, the plaintiff has given multiple and differing accounts of the
happening of the accident. Notably, the plaintiff gave an account of the accident in
his own handwriting to a treating healthcare provider that implies that he was not
even installing insulation at the time of his accident, but rather that he was simply
walking around. [R. 867]. He gave other accounts, which differ from his
17
deposition testimony, including informing another physician that he was carrying
insulation rather than installing it at the time of his accident. [R. 868].
In a situation such as this, there are “questions of fact concerning the
circumstances surrounding plaintiff’s accident,” and summary judgment should not
be awarded. Buckley v. J.A. Jones/GMO, 38 A.D.3d 461, 832 N.Y.S.2d 560 (1st
Dep’t 2007); see also Danielewicz v. Klewin Bldg. Co., Inc., 39 A.D.3d 1194,
1194-95, 834 N.Y.S.2d 813 (4th Dep’t 2007) (“plaintiff’s inconsistent accounts of
the manner in which the accident occurred raise issues of fact whether the statute
was violated and, if so, whether that violation was a proximate cause of the
accident.”); Hamill v. Mutual of America Investment Corp., 79 A.D.3d 478, 479,
913 N.Y.S.2d 62 (1st Dep’t 2010) (“The conflict between these witnesses’
testimony and plaintiff’s testimony … presents a triable issue of fact whether
plaintiff’s injury was attributable to defendant’s failure to provide adequate
protective devices or was caused solely by plaintiff’s own conduct.”); Petrocelli v.
Tishman Constr. Co., 19 A.D.3d 145, 145, 797 N.Y.S.2d 12 (1st Dep’t 2005)
(“Conflicting evidence with respect to how plaintiff fell from the ladder presented
a triable issue as to whether plaintiff’s injury was attributable to provide adequate
protective devices or was solely attributable to plaintiff’s own conduct.”); Kumar
v. Stahlunt Assoc., 3 A.D.3d 330, 769 N.Y.S.2d 884 (1st Dep’t 2004) (holding that
18
differing accounts of the manner in which plaintiff’s construction site accident
occurred raised triable issues of fact).
It is important to note that the discrepancy between plaintiff’s versions of
what he was doing when he slipped on ice while wearing stilts would result in
different outcomes based upon plaintiff’s own arguments. Plaintiff argues that the
fact that he was installing insulation, rather than merely retrieving a tool, when he
slipped should cause this Court to find Labor Law §240(1) applicable under the
holding of Matos v. Garden State Brick Face, 272 A.D.2d 70, 707 N.Y.S.2d 169
(1st Dep’t 2000). However, if the plaintiff was merely walking around or carrying
insulation, surely even plaintiff would agree that, under Matos, Labor Law §240(1)
would not apply. Plaintiff’s description of the accident in the medical records that
he was walking around and carrying insulation, and not installing it, raises
important issues of fact that cannot be determined on the law and should, instead,
be submitted to a jury.
Because plaintiff himself has given differing account as to how the accident
occurred, there are significant questions of fact with respect to the occurrence of
the accident. Therefore, summary judgment is not appropriate in this case. See
Doan v. Aiken & McGlauklin, Inc., 217 A.D.2d 908, 629 N.Y.S.2d 921 (4th Dep’t
1995); Macutek v. Lansing, 226 A.D.2d 964, 640 N.Y.S.2d 693 (3d Dep’t 1996).
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CONCLUSION
For all the foregoing reasons, this Court should reverse that portion of the
Appellate Division, Fourth Department’s Decision affirming that Labor Law
§240(1) applied to the plaintiff. In order to be awarded summary judgment on
liability under § 240(1) of the New York Labor Law, a plaintiff must show that
there was a defect in the safety device provided or that the absence of another
safety device was a proximate cause of the accident. The plaintiff herein has failed
to do so. Mr. Nicometi admitted that there was no defect in the stilts that he was
using. Rather, the accident was allegedly caused by his slipping on ice. Simply
put, ice is not a risk that these devices are intended to protect against. As such,
Labor Law §240(1) is inapplicable to accident in question. Additionally, whether
Mr. Nicometi’s actions were the sole proximate cause of this incident is a triable
issue of fact which should be submitted to a jury.
DATED: May 29, 2014
Respectfully submitted,
BAXTER SMITH & SHAPIRO, P.C.
By: s/ Michael V. Mclaughlin
Sim R. Shapiro
Michael V. McLaughlin
182 Dwyer Street
West Seneca, New York 14224
Tel.: (716) 854-6140
Fax: (716) 854-6540