To be Argued by: LOUIS B. DINGELDEY JR., ESQ. (Time Requested: 15 Minutes) Appellate Division Docket No. CA 12-01962 Erie County Clerk’s Index Nos. 2008-3306 and 2008-3306-TP3 New York Supreme Court Appellate Division-Fourth Department MARC A. NICOMETI, Plaintiff-Respondent, - against - THE VINEYARDS OF FREDONIA, LLC, WINTER-PFOHL, INC., Defendants-Appellants, THOMAS WHITNEY and SCOTT PFOHL, Defendants. ------------------------------- SCOTT PFOHL, Third-Party Plaintiff, WINTER-PFOHL, INC., Third-Party Plaintiff-Appellant, - against - WESTERN NEW YORK PLUMBING-ELLICOTT PLUMBING AND REMODELING CO., INC., Third-Party Defendant-Appellant. REPLY BRIEF FOR THIRD-PARTY DEFENDANT-APPELLANT Of Counsel: Louis B. Dingeldey Jr., Esq. William Boltrek III, Esq. BAXTER SMITH & SHAPIRO, P.C. Attorneys for Third-Party Defendant-Appellant 182 Dwyer Street West Seneca, New York 14224 (716) 854-6140 TABLE OF CONTENTS Table of Authorities ....................................................................................... ii Preliminary Statement ........................................................................................ 1 Statement of Facts ............................................................................................ 2 ARGUMENT POINT 1: THE PLAINTIFF-RESPONDENT HAS FAILED TO OPPOSE WNY PLUMBING'S CONTENTION, AND THEREFORE, CONCEDES, THAT THE PLAINTIFF-RESPONDENT'S MOTION WAS PREMATURE AND SHOULD HAVE BEEN DENIED BY THE COURT BELOW ............................... 2 POINT II: N.Y. LABOR LAW §240(1) DOES NOT APPLY TO THE SUBJECT ACCIDENT .......................................................................... 5 POINT III: EVEN ASSUMING ARGUENDO THAT LABOR LAW SECTION 240(1) APPLIES TO THIS MATTER, MATERIAL ISSUES OF FACT STILL PRECLUDE AWARDING SUMMARY JUDGMENT TO THE PLAINTIFF- RESPONDENT ................................................................................................. 9 CONCLUSION: ............................................................................................. 12 TABLE OF AUTHORITIES Case Law: A .... 11drews v. Ryan Homes, Inc., 27 A.D.3d 1197, 812 N.Y.S.2d 729 (4th Dept. 2006) ........................................... 10 Bahrman v. Holtsville Fire Dist., 270 A.D.2d 438, 704 N.Y.S.2d 660 (4th Dept. 2000) ............................................ 11 Burgdorfv. Kasper, 921 N.Y.S.2d 769, 921 N.Y.S.2d 769 (4th Dept. 2011) ......................................................... 3 Busby v. Ticonderoga Central Schools, 222 A.D.2d 882, 636 N.Y.S.2d 131 (3d Dept. 1995) ......................................................... 3 Ewing v. ADF Const. Corp., 16 A.D.3d 1085,793 N.Y.S.2d 306 (4th Dept. 2005) ............................................. 9 Friel v. Papa, 87 A.D.3d 1108,930 N.Y.S.2d 39 (2d Dept. 2011) ............................................................... 3 Kassis v. Teachers' Ins. And Annuity Ass'n, 13 A.D.3d 165, 786 N.Y.S.2d 473 (1st Dept. 2004) .............................................................. .4 McNabb v. Oot Bros., Inc., 64 A.D.3d 1237, 882 N.Y.S.2d 792 (4th Dept. 2009) .......................................... 7, 8 Melber v. 6333 Main St., Inc. 91 N.Y.2d 759,698 N.E.2d 933,676 N.Y.S.2d 104 (1998) .................................. 6, 7 Morris v. Goldstein, 223 A.D.2d 582,636 N.Y.S.2d 415 (2d Dept. 1996) .............................................. 3 Russell v. Widewaters South Bay Road Assoc., LLP, 289 A.D.2d 1025,735 N.Y.S.2d 900 (4th Dept. 2001) ............................................ 8 Thome v. Benchmark Main Transit Assocs .. T J r; 86 A.D.3d 938,927 N.Y.S.2d 260 (4th Dept. 2011) ......................................... 10, 11 Weininger v. Hagedorn & Co., 91 N.Y.2d 958,695 N.E.2d 709,672 N.Y.S.2d 840 (1998) ..................................... 10 11 Statutes and Other Authorities: N.Y. C.P.L.R. §2201 (McKinney's 2011) .......................................................... 3 N.Y. C.P.L.R. §3212(f) (McKinney's 2011) ...................................................... .2 N.Y. LABOR LAW §240(1) ............................................................... ......... ibid iii PRELIMINARY STATEMENT This Reply Brief is submitted by Third-Party Defendant-Appellant, Western New York Plumbing- Ellicott Plumbing and Remodeling Co., Inc. ("Third-Party Defendant-Appellant" or "WNY Plumbing") in response to Responding Brief of Plaintiff, Marc A. Nicometti, and in further support of WNY Plumbing's appeal in this case. In the instant matter, the presence of ice on the floor of the apartment where the Plaintiff-Respondent was working was not the risk which brought about the need for the stilts used by the Plaintiff-Respondent in the first instance. Additionally, the accident was not the result of the type of hazards that are designed to be protected against by the use or placement of the safety devices enumerated in 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 extraordinary, and statutorily proscribed, protections of Labor Law §240( 1) do not extend. Moreover, the Court below should have denied the Plaintiff-Respondent's motion as premature, as WNY Plumbing was not afforded the ability to conduct reasonable and necessary discovery to which it is entitled under the N.Y. C.P.L.R. STATEMENT OF FACTS The Third-Party Defendant-Appellant relies on the Statement of Facts as set forth in WNY Plumbing's Appellate Brief dated January 28, 2013. ARGUMENT POINT I THE PLAINTIFF-RESPONDENT HAS FAILED TO OPPOSE WNY PLUMBING'S CONTENTION AND, THEREFORE, CONCEDES THAT THE PLAINTIFF-RESPONDENT'S MOTION WAS PREMATURE AND SHOULD HAVE BEEN DENIED BY THE COURT BELOW WNY Plumbing argued in its Appellate Brief that facts essential to WNY Plumbing's ability to oppose Plaintiff-Respondent's motion were unavailable. See N.Y. C.P.L.R. §3212(£) (McKinney's 2011). WNY Plumbing was not interpleaded into this action until five years after the alleged injury and more than three years after the initial lawsuit was commenced. [R. 892]. These issues were fully presented to the Court below and therefore preserved for this appeal. [R. 892-93]. The Plaintiff-Respondent has not opposed this portion of the Third- Party Defendant-Respondent's appeal. Therefore, it is submitted that it is 2 conceded that Plaintiff-Respondent's motion was premature given that the Third-Party Defendant-Appellant had only recently been interpleaded into this case. This is consistent with case law on this issue. See, e.g., Morris v. Goldstein, 223 A.D.2d 582, 636 N.Y.S.2d 415 (2d Dept. 1996); Busby v. Ticonderoga Central Schools, 222 A.D.2d 882, 636 N.Y.S.2d 131 (3d Dept. 1995). Likewise, WNY Plumbing contended in its Appellate Brief that the Court below should have exercised its discretion to stay a decision on Plaintiff-Respondent's motion until the Third-Party Defendant had a reasonable and meaningful opportunity to conduct discovery, as provided under the CPLR. See, e.g, Burgdorfv. Kasper, 921 N.Y.S.2d 769, 772, 921 N.Y.S.2d 769 (4th Dept. 2011); see generally Friel v. Papa, 87 A.D.3d II 08, 930 N.Y.S.2d 39, 41 (2d Dept. 2011) (explaining the importance and purpose of discovery prior to trial); see also N.Y. C.P.L.R. §2201 (McKinney's 2011). Moreover, it is WNY Plumbing's contention that the lack of any meaningful ability to conduct discovery prior to being forced to respond to Plaintiff-Respondent's motion clearly served to prejudice the Third-Party Defendant-Appellant, especially because such party would be subject to interest on a judgment if there was later a liability finding against 3 such party. See, e.g., Kassis v. Teachers' Ins. And Annuity Ass'n, 13 A.D.3d 165, 786 N.Y.S.2d 473, 474 (1st Dept. 2004). Likewise, these Issues were presented to the Court below and preserved for appeal. Plaintiff-Respondent has failed to refute WNY Plumbing's contention that it had been prejudiced by having to oppose Plaintiff-Respondent's motion before being allowed to conduct discovery in accordance with the C.P.L.R. As such, this Court should reverse the decision of the Court below and deny Plaintiff-Respondent's motion, at least without prejudice, to allow the Third-Party Defendant-Respondent the ability to conduct meaningful and adequate discovery in accordance with its rights under the N.Y. C.P.LR. 4 POINT II N.Y. LABOR LAW §240(1) DOES NOT APPLY TO THE SUBJECT ACCIDENT The Plaintiff-Respondent continues to maintain that the circumstances of this accident are governed by Labor Law §240(1). However, the hazard that caused the Plaintiff-Respondent's fall, namely ice, is wholly unrelated to the hazards contemplated by N.Y. Labor Law §240(1). Accordingly, the Plaintiff-Respondent's motion should have been denied and the Defendants' various motions for summary judgment pursuant to Labor Law §240(1) should have been granted. In sum, while working on stilts, the Plaintiff- Respondent claims that ice on the floor caused him to fall and suffer injury. The Plaintiff-Respondent testified that he slipped as he stepped forward onto ice and he conceded that the stilts did not malfunction. [R. 19, 196]. The Plaintiff-Respondent has not demonstrated that the stilts failed to perform as intended or that they failed to allow the Plaintiff-Respondent to safely perform his work at an elevated height, as required by the Statute. There is no claim that the stilts were defective or deficient. Rather, the accident occurred because there was ice present on the floor where the Piaintiff- Respondent was working. 5 The Court of Appeals has held, in a similar case, that a plaintiff who was injured while walking down a corridor wearing 42 inch stilts and who tripped over an electrical conduct protruding from an unfinished floor had no cause of action under Labor Law §240(1). See Melber v. 6333 Main St., Inc., 91 N.Y.2d 759, 698 N.E.2d 933, 676 N.Y.S.2d 104 (1998). The plaintiff in Melber had been using stilts to install metal studs in drywall. The Court of Appeals in Melber found that the plaintiffs injury was caused by the protruding conduit on the unfinished floor, not because of an elevation-related risk. The Court of Appeals found that the plaintiffs accident "fell outside the scope of Labor Law §240(1 )." 91 N.Y.2d at 761- 62. Not only did the Court of Appeals in Melber refuse to award summarily for the plaintiff, rather, the Court dismissed the Labor Law §240(1) claim. The Court held: Id. at 763. 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. 6 In the instant matter, the risk of slipping on ice, with or without the use of stilts, is not a risk that can be avoided by proper placement or utilization of any of the devices enumerated in Labor Law §240(1 ). Furthermore, the Plaintiff-Respondent admitted himself that stilts were the proper device to carry out his assigned task. Those devices listed in the Statute are not designed to avoid the hazard which allegedly caused the Plaintiff-Respondent's accident, namely, slipping on ice. See Melber, 91 N.Y.2d at 763-64 ("Even if the stilts failed to avoid that pitfall [conduit on floor], plaintiffs 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 . . . Thus, plaintiff must look elsewhere for his remedy") (internal citations omitted). In the instant matter, the Ice on the unfinished floor is not distinguishable from the electrical conduit that was protruding from an unfinished floor. The Appellate Division, Fourth Department, has repeatedly and consistently understood and properly applied the Melber decision. In McNabb v. Oot Bros., Inc., 64 A.D.3d 1237, 882 N.Y.S.2d 792 (4th Dept. 7 2009), the Court found that the Labor Law §240(1) did not apply to a situation where the plaintiff "was working on stilts when he tripped over an electrical cord, causing him to fall and sustain injuries." Id. at 1239 ("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") (internal citations omitted). Similarly, in Russell v. Widewaters South Bay Rd. Assocs., LLP, 289 A.D.2d 1025, 735 N.Y.S.2d 900 (4th Dept. 2001), the Appellate Division, Fourth Department , affirmed the decision of the Trial Court which granted summary judgment dismissing the plaintiffs Labor Law §240(1) claim. The Court found that the plaintiff "tripped over an electrical cord while working on stilts and, in doing so, did not encounter a hazard contemplated by the statute") (internal citations omitted). Id. at I 025. In the instant matter, the Plaintiff-Respondent's injury was the result of ice, which is an ordinary, not height-related hazard, which was not related to the danger which brought about the need for stilts in the first place. [R. 851]. The Plaintiff-Respondent admitted during his deposition that the accident did not occur because of any failure in the stilts, but rather because of ice on the floor. [R. 852]. 8 POINT III EVEN ASSUMING ARGUENDO THAT LABOR LAW SECTION 240(1) APPLIES TO THIS MATTER, MATERIAL ISSUES OF FACT STILL PRECLUDE AWARDING SUMMARY JUDGMENT TO THE PLAINTIFF -RESPONDENT Plaintiff-Respondent argues in Point of his Brief that the Defendants failed to raise an issue of fact and suggest that merely providing safety instructions is insufficient. However, the facts of this matter are distinguishable from the cases cited by the Plaintiff-Respondent. Unlike Ewing v. ADF Const. Corp., 16 A.D.3d 1085, 793 N.Y.S.2d 306 (4th Dept. 2005), et. al., the instant matter did not merely involve "providing safety instructions" to the Plaintiff-Respondent. Rather, there is testimony that the Plaintiff-Respondent expressly disregarded the instruction of his Supervisor to avoid working in the area where the ice was present. In fact, the Plaintiff-Respondent's Supervisor testified that he instructed the Plaintiff-Respondent and his co-workers "do not insulate that area". [R. 589]. The reason for this instruction was "[b]ecause it would be unsafe to be walking on ice on stilts". [R. 590]. Thus, at a minimum, a jury could reasonably conclude that the failure of the Plaintiff-Respondent to abide by a clear, simple and safety related command by his employer is clearly the sole proximate cause of the subject. 9 As this Court is well aware, the function of the Trial Court on a motion is not to resolve credibility issues and that the non-movant must be given every favorable inference from the testimony and evidence presented. 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 admissible evidence that a worker was injured while engaged in an activity that he or she had been expressly warned against creates an issue of fact as to whether the plaintiff was a recalcitrant worker and, if so, where such actions were the sole proximate cause of the plaintiff's injuries, summary judgment is precluded. See, e.g., Andrews v. Ryan Homes, Inc., 27 A.D.3d 1197, 1198, 812 N.Y.S.2d 729 (4th Dept. 2006); Thome v. Benchmark Main Transit Assocs., LLC, 86 A.D.3d 938, 939-40, 927 N.Y.S.2d 260 (4th Dept. 2011). Herein, there are clearly issues of fact as to whether the Plaintiff- Respondent's actions were the "sole proximate cause" of his injury. Notably, the Plaintiff-Respondent's Supervisor testified that he provided a simple, safety related instruction to the Plaintiff-Respondent to refrain from 10 insulating the area where the ice was present. [R. 587-89]. This fact is essentially admitted by the Plaintiff-Respondent who also testified that he raised concerns to his Supervisor about working on ice. [R. 151, 281, 290, 318]. In an analogous matter, this Honorable Court in Thome v. Benchmark Main Trans. Assoc., found that there was a question of fact as to whether the plaintiff's fall resulted from his own misuse of the safety device and whether such conduct was the sole proximate cause of his injuries. 86 A.D.3d at 939-40 citing Bahrman v. Holtsville Fire Dist., 270 A.D.2d 438, 439, 704 N.Y.S.2d 660 (4th Dept. 2000). This Court in Thome noted that 'plaintiff had been specifically directed not to operate the scissor lift in the area where the holes had been cut", which instruction the plaintiff ignored, in finding that there was a question of fact as to the issue of whether the plaintiff's actions were the sole proximate cause of his injuries. 86 A.D.3d at 939-40. As there is testimony that the Plaintiff-Respondent was expressly instructed by this Supervisor "do not insulate that area [where the ice was present]" [R. 589], Plaintiff-Respondent's summary judgment motion should have been denied and this matter should have been decided by the trier of fact. Respectfully, the decision of the Court below awarding summary judgment to the Plaintiff-Respondent should be reversed. 11 CONCLUSION For all the foregoing reasons, this Court should reverse that portion of the Order of the Court below that granted summary judgment to the Plaintiff-Respondent. In order to win summary judgment on liability under Section 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- Respondent herein has failed to do so. The Plaintiff-Respondent admitted that there was no defect in the stilts that he was using. Rather, the accident was allegedly caused by his slipping on ice. The absence of a scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons or ropes was not a proximate cause of the accident. Simply put, ice is not a risk that these devices are intended to protect against. As such, Labor Law §240 is inapplicable to accident in question. Moreover, there are clear questions of fact as to whether the Plaintiff-Respondent's own negligence and failure to abide by a safety-related command from his employer to refrain from working in the ice covered area was the sole proximate cause of the subject accident. As such, the decision of the Court below should be reversed. 12 Dated: West Seneca, New York March 13, 2013 By: Respectfully submitted, BAXTER SMITH & SHAPIRO, P.C. Louis B. Dingeldey .1. William Boltrek Attorneys for Third-Party Defendant- Appellant, Western New York Plumbing- Ellicott Plumbing and Remodeling Co. Inc. 13
