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
