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. 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 Question Presented ........................................................................................................................ 4 Statement of Facts .......................................................................................................................... 5 ARGUMENT POINT 1: LABOR LAW §240(1) DOES NOT APPLY TO THIS MATTER AS SUCH STATUTE DOES NOT EXTEND TO PROTECTING A WORKER AGAINST THE HAZARD OF SLIPPING ON ICE, AS THAT IS NOT AN ELEVATION- RELATED RISK ......................................................................................................................... 11 POINT II: 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 ............................................................................................................................ 17 POINT III: THE COURT BELOW SHOULD HAVE DENIED PLAINTIFF-APPELLANT'S MOTION AS PREMATURE AS THE THIRD-PARTY DEFNDANT- APPELLANT HAD NOT BEEN ALLOWED TO CONDUCT INDEPENDENT DISCOVERY PRIOR TO THE FILING OF THE SUBJECT MOTION FOR SUMMARY JUDGMENT .......................................................................................................... 22 CONCLUSION ............................................................................................................................ 24 TABLE OF AUTHORITIES Case Law: Andrews v. Ryan Homes, Inc., 27 A.D.3d 1197, 812 N.Y.S.2d 729 (4th Dept. 2006) ......................................................... 19 Bahrman v. Holtsville Fire Dist., 270 A.D.2d 438,704 N.Y.S.2d 660 (4th Dept. 2000) ....................................................... 19 Blake v. Neighborhood Hous. Services ofNew York City, Inc., 1 N.Y.3d 280, 803 N.E.2d 757,771 N.Y.S.2d 484 (2003) ............................................ 17, 18 Buckley v. J.A. Jones/GMO, 38 A.D.3d 461, 832 N.Y.S.2d 560 (1st Dept. 2007) ............................................................ 20 Burgdorf v. Kasper, 921 N.Y.S.2d 769, 921 N.Y.S.2d 769 (4th Dept. 2011) ...................................................... 23 Busby v. Ticonderoga Central Schools, 222 A.D.2d 882, 636 N.Y.S.2d 131 (3d Dept. 1995) .......................................................... 22 Cohen v. Memorial Sloan-Kettering Cancer Center, 11 N.Y.3d 823, 897 N.E.2d 1059, 868 N.Y.S.2d 578 (2008) ....................................... 12, 15 Doan v. Aiken & McGlauklin, Inc., 217 A.D.2d 908, 629 N.Y.S.2d 921 (4th Dept. 1995) ......................................................... 21 Duda v. John W. Rouse Construction Corp., 32 N.Y.2d 405,298 N.E.2d 667, 345 N.Y.S.2d 524 (1973) ............................................... 18 Friel v. Papa, 87 A.D.3d 1108,930 N.Y.S.2d 39 (2d Dept. 2011) ............................................................. 23 Kassis v. Teachers' Ins. And Annuity Ass'n, 13 A.D.3d 165, 786 N.Y.S.2d 473 (1st Dept. 2004) ............................................................ 23 Macutek v. Lansing, 226 A.D.2d 964,640 N.Y.S.2d 693 (3d Dept. 1996) .......................................................... 21 Matos v. Garden State Brice Face, 272 A.D.2d 70, 707 N.Y.S.2d 169 (1st Dept. 2000) ...................................................... 14, 15 McNabb v. Oot Bros., Inc., 64 A.D.3d 1237,882 N.Y.S.2d 792 (4th Dept. 2009) ............................................ 13, 14, 15 11 Melber v. 6333 Main St., Inc. 91 N.Y.2d 759, 698 N.E.2d 933,676 N.Y.S.2d 104 (1998) ................................... 13, 14, 15 ~v1orris v. Goldstein, 223 A.D.2d 582,636 N.Y.S.2d 415 (2d Dept. 1996) ........................................................ 22 Narducci v. Manhasset Bay Assocs., 96 N.Y.2d 259, 750 N.E.2d 1085, 727 N.Y.S.2d 37 (2001) ................................... 11, 12, 16 Nieves v. Five Boro Air Conditioning & Refrigeration Corp., 93 N.Y.2d 914, 712 N.E.2d 1219, 690 N.Y.S.2d 852 (1999) ............................................. 15 Primavera v. Henderson Family 1968 Trust, 294 A.D.2d 923, 741 N.Y.S.2d 816 (4th Dept. 2002) ......................................................... 16 Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 583 N.E.2d 932, 577 N.Y.S.2d 219 (1991) ............................................... 12 Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 618 N.E.2d 82, 601 N.Y.S.2d 49 (1993) .............................................. 11, 12 Russell v. Widewaters South Bay Road Assoc., LLP, 289 A.D.2d 1025, 735 N.Y.S.2d 900 (4th Dept. 2001) ......................................... 13, 14, 15 Thome v. Benchmark ~T1ain Transit .l~1o.ssocs., LLC, 86 A.D.3d 938, 927 N.Y.S.2d 260 (4th Dept. 2011) ..................................................... 19, 20 Weinberg v. Alpine Improvements LLC, 48 A.D.3d 915,851 N.Y.S.2d 692 (3d Dept. 2008) ............................................................. 18 Weininger v. Hagedorn & Co., 91 N.Y.2d 958,695 N.E.2d 709,672 N.Y.S.2d 840 (1998) ................................................ 18 Statutes and Other Authorities: Labor La\v §240(1) .......................................................................................................... passim N.Y. C.P.L.R. §2201 (McKinney's 2011) ......................................................................... 23 N.Y. C.P.L.R. §3212(f) (McKinney's 2011) .................................................................... .22 111 PRELIMINARY STATEMENT This 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"). This action was brought based upon personal injuries allegedly sustained by Plaintiff-Respondent, Marc A. Nicometti ("Plaintiff-Respondent" or "Mr. Nicometti"), when Mr. Nicometti fell from stilts on an allegedly icy floor at premises owned by the Defendants-Cross-Appellants, The Vineyards of Fredonia, LLC. ("The Vineyards") [R. 29-38, 48-54]. (References to the Record on appeal will be delineated as R._). Plaintiff-Respondent thereafter moved for partial summary judgment on liability under Labor Law §240(1 ). Defendants, Schott Pfohl ("Pfohl") and Winter-Pfohl, Inc. ("Winter-Pfohl") cross-moved for summary judgment, seeking to dismiss, Plaintiff-Respondent's Labor Law §240(1) claim. Third-Party Defendant-Appellants opposed Plaintiff-Respondent's motion. The Supreme Court, Erie County, (Hon. Timothy J. Drury, J.S.C.) granted Plaintiff-Respondent's motion and denied Winter-Pfohl 's cross- motion. [R. 15-17]. The Supreme Court did grant that portion of Pfohl's motion that sought dismissal against Mr. Pfohl individually. [R. 17]. 1 By Notice of Appeal dated June 22, 2012, the Third-Party Defendant- Appellant appealed from said Order. [R. 3-6]. Winter-Pfohl has also appealed from said Order. [R.ll-14]. Likewise, The Vineyards also appealed from said Order. [R. 7-1-0]. Both Winter-Pfohl and The Vineyards have already perfected their respective appeals. The Third-Party Defendant-Appellants now timely perfects its appeal. Third-Party Defendant-Appellant will argue on this appeal that the Supreme Court erred in granting Plaintiff-Respondent's motion and in denying the cross-motion ofWinter-Pfohl for summary judgment dismissing Plaintiff-Respondent's Labor Law §240(1) claim. There is no viable Labor Law §240(1) claim where an injury results from a separate hazard, unrelated to the risks which brought about the need for the safety device in the first instance. 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 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 2 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. 3 QUESTION PRESENTED 1. Was it error for the Court below to hold that the Plaintiff- Respondent was entitled to summary judgment on his Labor Law § 240(1) claims where the Plaintiff-Respondent slipped on an allegedly icy floor while wearing stilts? The Court below awarded the Plaintiff-Respondent summary judgment. The Third-Party Defendant-Appellant maintains that Labor Law §240(1) is inapplicable to this instance as the hazard of an icy floor is not a condition contemplated by Labor law §240(1 ), since it is not an elevation- related risk. As such, Third-Party Defendant-Appellant respectfully submits that the decision of the Court below was incorrect as a matter of law. The Third-Party Defendant-Appellant further submits that summary judgment should not have been awarded at this time, as the Third-Party Defendant-Appellant had only recently been impled as a party in this matter and it was unable to conduct full discovery prior to opposing Plaintiff- Respondent's motion. 4 STATEMENT OF FACTS Plaintiff-Respondent was working as an employee of 84 Lumber as • . 1 • . • ,- . 1 1 • ...l 1 r'o I\ £': • ~· msUiatwn mstaliers at a aevewpment proJect owneu oy ~o-.Uetendant, i he Vineyards. [R. 100, 115-16. 131]. The Vineyards hired Winter-Pfohl as its general contractor to build ten buildings. [R. 340]. Plaintiff-Respondent 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-Respondent testified that on the day of the accident, Mr. Ellsworth drove him and Mr. Grzeskowiak, as passengers, in the company vehicle to the construction site. [R. 129]. It was a cold day and there was ice on the floor in the building where the Plaintiff.-Respondent was working. [R. 151-52]. According to the Plaintiff-Respondent, no one else was working in the same room as him, with the exception of a "sprinkler guy, who was running leak tests on the sprinkler system. [R. 152-53]. The Plaintiff-Respondent was installing insulation in the ceiling. He was using stilts to install the insulation. [R. 165-66]. He was using a hammer-tacker to affix the insulation. [R. 191, 200]. The Plaintiff- Respondent had never used a ladder to install insulation and he had only used a scaffold once before. [R. 179, 287-88]. The Plaintiff-Respondent 5 testified that stilts were the proper device for the relevant project at The Vineyards' property. The Plaintiff-Respondent testified that he had all of the tools and devices necessary for the job. [R. 182-83]. The Plaintiff-Respondent testified that on the day of the accident he was concerned about his safety, as he was working on stilts in an icy area. He expressed his concern to Mr. Hilliker, his supervisor. [R. 151, 281, 290]. Plaintiff-Respondent states a belief that Mr. Hilliker had told an employee of another contractor to take care of the ice. [R. 157-58]. Plaintiffs co- worker, Mr. Ellsworth, testified that he did not see any ice on the floor inside the building that morning and did not have a recollection about being warned about any ice on the floor. [R. 727]. The Plaintiff-Respondent testified that as he swung a hammer-tacker, he stepped forward onto ice and slipped, falling onto a bag of insulation on the floor. [R. 194]. The stilts that the Plaintiff-Respondent was using elevated the user by two to five feet. [R. 173]. Notably, the Plaintiff- Respondent testified that the stilts that he was using were not defective in anyway. [R. 196]. Plaintiff-Respondent also testified that all three of his co-workers were within sight of him and came over to provide assistance after he fell. 6 They unstrapped him from the stilts and Mr. Hilliker and Mr. Grzeskowiak helped him get up. [R. 198, 20 1-02]. Plaintiff-Respondent was not certain what 1v1r. Grzeskowiak was doing just before the accident, or where he was in relation to him. [R. 199, 288]. Plaintiff-Respondent stated a belief that Mr. Grzeskowiak was using a ladder to pack window insulation prior to the accident. [R. 199]. Plaintiff-Respondent testified that his best recollection was that Mr. Ellsworth was installing insulation in the same fashion as the Plaintiff-Respondent. [R. 198-99]. Mr. Ellsworth testified that the Plaintiff-Respondent was on stilts and using his hands, not a hammer-tacker to install friction-fit insulation in the ceiling. [R. 670]. Mr. Ellsworth did not see the Plaintiff-Respondent fall, though he did observe him lying on top of a bag of insulation after hearing the Plaintiff-Respondent fall. [R. 679-80, 683-84, 687]. Mr. Ellsworth then observed the Plaintiff-Respondent take offhis own stilts and walk away. [R. 685-86, 712, 731]. Mr. Hilliker testified that he arrived at the relevant work site before the Plaintiff-Respondent. Mr. Hilliker was not aware of anyone from any of the other contractors being present that morning inside the building where the 84 Lumber employees were working. [R. 289]. Mr. Hilliker testified that he saw that there was ice on the floor in the building where they were 7 working and that he warned his workers about the ice and specifically told them not to insulate that area. [R. 587, 589]. Mr. Hilliker ciaims that the Plaintiff-Respondent was elevated on stilts by approximately eighteen (18) inches and that the Plaintiff-Respondent was using his hands, not a hammer-tacker, to install friction-fit insulation in the ceiling. [R. 574, 577, 628]. Scaffolding was only used for higher ceilings and a ladder or scaffolding was not needed for this particular insulation installation project. [R. 547-48]. Mr. Hilliker testified that he was present in the doorway of the room where the Plaintiff-Respondent was working and that he had begun to walk towards the Plaintiff-Respondent to tell him to get out of the icy area. It was then that the Plaintiff-Respondent slipped and fell onto a bag of insulation. [R. 572-74, 591-92]. Mr. Hilliker testified that the Plaintiff-Respondent took off his own stilts before standing up and walking around the room. [R. 583]. Mr. Grzeskowiak testified that he drove to the job site, along with the Plaintiff-Respondent and Mr. Ellsworth in the company van. [R. 449]. Mr. Grzeskowiak recalled there being plumbers present at the job site, as he saw their van parked outside. [R. 450-51, 470]. He recalled it being a cold day 8 and that there was ice "everywhere" on the floor inside the building where they were working. [R. 480]. Mr. Grzeskowiak admitted that Mr. Hilliker warned them about ice on other occasions, but he did not recall I'v1r. Hilliker having warned them about ice on the morning of the accident involving the Plaintiff-Respondent. [R. 461-62, 525]. Mr. Grzeskowiak did not recall Mr. Hilliker having been at the worksite prior to or at the time of the accident involving the Plaintiff-Respondent. [R. 459, 469, 495, 505]. Mr. Grzeskowiak testified consistent with Mr. Hilliker, and somewhat contrary to the Plaintiff-Respondent, that the Plaintiff-Respondent was on stilts and using his hands, not a hammer-tacker, to install friction-fit insulation in the ceiling. [R. 503]. Mr. Grzeskowiak was also working on stilts, which were elevated about three feet. He was working approximately four feet away from the Piaintiff-Respondent, doing the exact same type of work. [R. 457, 473, 477-79]. Mr. Grzeskowiak observed the Plaintiff- Respondent's feet encountered the icy floor and go out from underneath him. Mr. Hilliker testified that the Plaintiff-Respondent fell onto his buttocks, onto bare concrete, not onto a bag of insulation, as claimed by the Plaintiff-Respondent. [R. 476-79]. 9 Mr. Grzeskowiak testified that there was no one else, including Mr. Ellsworth or Mr. Hilliker, in the room where he and the Plaintiff-Respondent 1 ~ , ,1 , • I"" , 1 1 • , • 1 , rT"1t. A ,...., A A A!"" I"" A I"", A f'", were worKmg at me nme or me suoJect accwem. LK. '-+ t'J, '-+YJ, JVJ J. Aner the accident, Mr. Grzeskowiak undid his own stilts before picking up the Plaintiff-Respondent and removing the Plaintiff-Respondent's stilts. [R. 478-79]. Mr. Grzeskowiak claimed that he usually used either stilts or a scaffold for installing insulation, but that he only used a scaffold for jobs that had twenty foot high ceilings and he rarely used a ladder for insulation jobs. [R. 444-45]. Mr. Grzeskowiak testified that he would not have used a ladder or scaffold for this particular insulation installation project. [R. 504]. 10 ARGUMENT POINT I LABOR LAW §240(1) DO~S NOT APPLY TO THIS lVIATTEK AS SUCH STATUTE 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 extraordinary statutory protections of Labor Law §240(1 ). (In addition to the arguments and case law set forth herein, the Third-Party Defendant-Appellant relies upon the arguments and case law on this issue, as set forth in the Point I of the Appellate Brief of Winter-Pfohl). 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). Herein, the Plaintiff-Respondent has failed to demonstrate that either of the requirements of Labor Law §240(1) can be satisfied. As such, this Court should dismiss Plaintiff-Respondent's claim pursuant to Labor Law §240( 1 ). 11 There is no liability under Labor Law §240(1) if the worker's injury is caused by a hazard that was not contemplated by the N.Y. Legislature in enacting the statute. See Cohen v. ~vfemorial 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 as encompassed by Section 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. 78 N.Y.2d at 514. These are the "elevation-related risks" that the N.Y.S. Legislature designated to receive the special and extraordinary protections afforded under Labor Law §240(1 ). Injuries from other types of hazards are not protected under such 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. In a case that is strikingly on point, this Honorable Court affirmed the dismissal of a Labor Law §240(1) claim where a worker was injured when he tripped over an electrical cord while working on stilts. This Honorable Court held that such plaintiff had not "encounter[ ed] a hazard contemplated 12 by [Labor Law §240(1)". Russell v. Widewaters South Bay Road Assoc., LLP, 289 A.D.2d 1025, 735 N.Y.S.2d 900 (4th Dept. 2001) citing Melber v. /"'l"'l"'l"'J\K-~-- ~.L y ___ 1\1 NJ"'\.T.....,...l"'~l\ "161 £90~Tr:',....:l{)'i'i L~Ll\.T,TC11"J...:l 1,"",A 0.).).) Nlalil .:)l., lilC. Yl . I . .LU /.JY, I 1, 0 C l'II.L.LU 7.J.J, U/U 1'11. I .0.LU lV~ (1998). See also McNabb v. Oot Bros., Inc., 64 A.D.3d 1237, 882 N.Y.S.2d 792 (4th Dept. 2009). In McNabb this Honorable Court found that the trial court properly dismissed plaintiffs Labor Law §240(1) claim in a situation where the plaintiff was working on stilts and tripped over an electrical cord. The Court in McNabb found that the accident does not fall within the purview of that statute." McNabb, 64 A.D.3d at 1239. In the instant matter, the facts are undisputed that the Plaintiff- Respondent fell when he encountered ice on the floor. [R. 850]. The presence of ice on the floor is, similar to that of an electrical cord on the floor, not a hazard contemplated or protected against by Labor Law §240(1). The Court of Appeals in Melber dismissed the action despite the fact that the plaintiff was walking elevated on stilts, as the plaintiff fell when he encountered a conduit protruding from an unfinished floor. The Melber Court noted "The protective equipment envisioned by the statute is simply not designed to avert the hazard plaintiff encountered here." Id. at 763. 13 It is respectfully submitted that while ice may be a hazard to be guarded against, the risk of slipping on ice, like encountering an electrical cord or a protruding conduit, 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-Respondent allegedly encountered, namely an icy floor. The Plaintiff-Respondent's reliance upon decisions from the other departments of the Appellate Division that are apparently inconsistent with the Court of Appeals' decision in Melber, as well as decisions of this Honorable Court, including the decisions in Russell and McNabb, is clearly unavailing, as such authority is not controlling. Respectfully, the Appellate Division, First Department's holding in Matos v. Garden State Brice Face, 272 A.D.2d 70, 707 N.Y.S.2d 169 (1st Dept. 2000) misunderstood, misapplied and/or failed to follow Melber. The Court in Matos read Melber as depending on the fact that the plaintiff was walking to retrieve a tool in that case, rather than performing work at an elevated height. Notably the Matos Court stated "Here, in distinction to Melber, where the plaintiff was injured a fall from stilts as he walked down a hallway to retrieve a tool, 14 plaintiff was injured in the course of actually performing construction at an elevation." 272 A.D.2d at 70-71. The misreading of Melber decision by the Court in :tvfatos is cleariy contrmy to holding of tv1elber, as well as to the holdings of this Honorable Court in Russell and McNabb. Therefore, in accordance with the Melber decision, as well as the prior holdings of this Honorable Court, Plaintiff-Respondent's claim under Labor Law §240(1) clearly lacks merit and should be dismissed as a matter of law. Liability is not imposed under Labor Law §240( 1) where the "injury results from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first place." Cohen v Memorial Sloan-Kettering Cancer Ctr., 11 N.Y.3d at 825. In Cohen, the plaintiff fell from a ladder. However, the ladder did not malfunction, rather, the plaintiff tripped over two unconnected pipes protruding from the wall. Id. The Court in Cohen held that this "was not the risk which brought about the need for the [ladder] in the first instance, but was one of the usual and ordinary dangers at a construction site to which the extraordinary protections of Labor Law 240(1) [does not] extent" (emphasis added). Id. (internal citations omitted). See also Nieves v. Five Boro Air Conditioning & Refrigeration Corp., 93 N.Y.2d 914, 915, 712 N.E.2d 1219, 690 N.Y.S.2d 852 (1999); 15 Primavera v. Benderson Family 1968 Trust, 294 A.D.2d 923, 741 N.Y.S.2d 816 (4th Dept. 2002). Additionally, it is submitted that Labor Law §240(1) does not apply because a safety device involved in an elevated-risk construction accident must have been intended to address the elevation-related risk that caused Plaintiff-Respondent's injury. See Narducci, 96 N.Y.S.2d at 267. (noting that a scissor jack is designed to protect a worker from falling, which is "an entirely different risk" from the one which injured the plaintiff, namely being struck by a light fixture). Herein, the Plaintiff-Respondent asserts that a scaffold or ladder would have prevented his injury. Notably, the Plaintiff-Respondent testified that stilts were the proper equipment for the task in question. A scaffold or ladder, even if properly placed, would not have prevented the Plaintiff- Respondent from slipping as he stepped off the ladder or scaffold, as those devices are not designed to protect against slipping on ice. A scaffold or ladder are designed to protect a worker from an unrelated injury, namely falling from an elevated position, whish is entirely different from the hazard in question - slipping on ice. Ice is a tripping hazard similar to an electrical cord. 16 POINT II EVEN ASSUMING ARGUENDO THAT LABOR LAW SECTION 240(1) APPLIES TO THIS MATTER, MATERIAL ISSUES OF FACT STiLL PRECLUDE A WARDiNG SUlYilYiARY JUDGlVlENT TO THE PLAINTIFF-RESPONDENT If this Honorable Court determines that Labor Law § 240( 1) applies to this action, then there are still issues of fact that preclude awarding summary judgment to the Plaintiff-Respondent. (In addition to the arguments and case law set forth herein, the Third-Party Defendant-Appellant relies upon the arguments and case law on this issue, as set forth in the Point II of the Appellate Brief of Winter-Pfohl). Moreover, the testimony of the various witnesses in this case are so inconsistent as to the facts and circumstances surrounding the subject accident that, a finder of fact must be allowed to examine all relevant evidence and testimony and evaluate the credibility of the witnesses, including the Plaintiff-Respondent. 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 plaintiffs injuries. See, e.g., Blake v. Neighborhood Hous. Services of New York City, Inc., 1 N.Y.3d 280, 289, 803 N.E.2d 757, 771 N.Y.S.2d 484 (2003). The Labor Law is vioiated when a contractor, owner or agent thereof does not provide "proper 17 protection" to a plaintiff and that such failure caused the plaintiffs injury. I d. A defendant makes a prima facie showing that there was no violation of this statutory protection where there is no evidence that the safety device malfunctioned or was not adequate for the task at hand. See Weinberg v. Alpine Improvements LLC, 48 A.D.3d 915, 917, 851 N.Y.S.2d 692 (3d Dept. 2008) (Court ruled that plaintiff could not make out a Labor Law §240(1) claim where the plaintiff had a cheese-like substance on his boots when he slipped and fell off a ladder, and conceded that the ladder itself did not fail). Notably, even assuming arguendo that there as a violation of Labor Law §240(1 ), a plaintiff must show that the violation was a "contributing cause of his fall." Blake v. Neighborhood Housing Svc. Of New York City, Inc., 1 N.Y.3d at 289; see also Duda v. John W. Rouse Construction 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 plaintiffs 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, 18 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 warned the Plaintiff-Respondent against working on ice. [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 19 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 plaintiffs actions were the sole proximate cause of his injuries. 86 A.D.3d at 939-40. Additionally, the Plaintiff-Respondent has given multiple and differing accounts of the happening of the accident. Notably, the Plaintiff- Respondent 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 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 plaintiffs 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 (l st Dept. 2007). Herein there are numerous contradictions between the testimony of the Plaintiff-Respondent and the other witnesses in this case, including that of 20 his co-workers. Furthermore, the Plaintiff-Respondent has himself given differing account as to how the accident occurred. As such, there are significant questions of fact with respect to the occuiTence of the accident. Therefore, summary judgment is not appropriate in this case and the Court below should have denied Plaintiff-Respondent's motion. See Doan v. Aiken & McGlauklin, Inc., 217 A.D.2d 908, 629 N.Y.S.2d 921 (4th Dept. 1995); Macutek v. Lansing, 226 A.D.2d 964, 965, 640 N.Y.S.2d 693 (3d Dept. 1996). 21 POINT III THE COURT BELOW SHOULD HAVE DENIED PLAINTIFF- APPELLANT'S MOTION AS PREMATURE AS THE THIRD- PARTY DEFNDANT -APPELLANT HAD NOT BEEN ALLO\VED TO CONDUCT INDEPENDENT DISCOVERY PRIOR TO THE FILING OF THE SUBJECT MOTION FOR SUMMARY JUDGMENT. In opposition the Plaintiff-Respondent's motion, the Third-Party Defendant-Appellant submitted an affirmation in opposition which noted that there had been no responses to any of its discovery demands. [R. 893]. 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]. As such, facts essential toWNY Plumbing's ability to oppose Plaintiff-Respondent's motion were unavaiiabie. See N.Y. C.P.L.R. §3212(±) (McKinney's 2011). Respectfully, the Court below should have denied summary judgment; as such motion was premature given that the Third-Party Defendant- Appellant had only recently been interpleaded into this case. 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). Additionally, it is respectfully submitted that the Court below should have exercised its discretion to stay a decision on Plaintiff- 22 Respondent's motion until the Third-Party Defendant had a reasonable and meaningful opportunity to conduct discovery, as provided under the CPLR. Cf T'L ____ ..J ___ _c __ T7------· ll""i1 lU '\/ C' ""i--1 "'7£:.(\ '1'72 (\"')1 1\.T V C' "')~ '7?.0 /J1th 0ee, e.g, nurguurr v. 1'\.._a:spca, ::ILl 1~.1.~.Lu 1u::~, 11 , 7Ll. n. 1. ·'-'·Lu 1v7 \'La Dept. 2011); see generally Friel v. Papa, 87 A.D.3d 1108, 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). 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 a later a liability finding against 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). Accordingly, given the procedural posture of this matter as relates to the Third-Party Defendant-Appellant, it is respectfully submitted that the Court below should have denied the Plaintiff-Respondent's motion, or it should have stayed a decision on such motion until the Third-Party Defendant-Appellant had a meaningful opportunity to conduct discovery. 23 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. 24 Dated: West Seneca, New York January 28, 2013 By: Respectfully submitted, BAXTER SlVurtl & SHAPmO, P.c. Louis B. Dingeldey Jr. William Boltrek Attorneys for Third-Party Defendant- Appellant Western New York Plumbing- Ellicott Plumbing and Remodeling Co. fuc. 25
