To be Argued by:
SIM R. SHAPIRO, ESQ.
(Time Requested: 15 Minutes)
Appellate Division Docket No. CA 12-01962
Erie County Clerk’s Index Nos. 2008-3306 and 2008-3306-TP3
Court of Appeals
State of New York
MARC A. NICOMETI,
– against –
THE VINEYARDS OF FREDONIA, LLC, WINTER-PFOHL, INC.,
THOMAS WHITNEY and SCOTT PFOHL,
– against –
WESTERN NEW YORK PLUMBING-ELLICOTT PLUMBING
AND REMODELING CO., INC.,
REPLY BRIEF FOR THIRD-PARTY
Sim R. Shapiro, Esq.
Michael V. McLaughlin, Esq.
BAXTER SMITH & SHAPIRO, P.C.
Attorneys for Third-Party
182 Dwyer Street
West Seneca, New York 14224
Tel.: (716) 854-6140
Fax: (716) 854-6540
July 29, 2014
TABLE OF CONTENTS
TABLE OF CONTENTS………………………………………………….. i
TABLE OF CITATIONS………………………………………………….. ii
STATEMENT PURSUANT TO 22 NYCRR§ 500.1(f)…………………... 1
PRELIMINARY STATEMENT…………………………………………... 2
I. A PLAINTIFF WHO IS INJURED WHILE
UTILIZING STILTS CANNOT SUPPORT A
LABOR LAW §240(1) CLAIM IN THE
ABSENCE OF PROOF THAT THE STILTS
FAILED, BROKE, COLLAPSED OR WERE
DEFECTIVE ………………………………………………. 3
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……………………………………………… 8
TABLE OF CITATIONS
Andrews v. Ryan Homes, Inc.,
27 A.D.3d 1197, 812 N.Y.S.2d 729 (4th Dep’t 2006) ……………... 8
Cahill v. Triborough Bridge and Tunnel Authority,
4 N.Y.3d 35, 823 N.E.2d 439, 790 N.Y.S.2d 74 (2004) …………… 9
Garcia v. Mt. Airy Estates, Inc.,
2012 N.Y. Slip Op. 50615(U) (Sup. Ct. Richmond Co. 2012) …….. 6
Gatto v. Clifton Park Senior Living,
90 A.D.2d 1387, 935 N.Y.S.2d 366 (3d Dep’t 2011) ……………… 7
Gonzalez v. Majestic Fine Custom Home,
2012 N.Y. Slip Op. 31466(U) (Sup. Ct. Queens Co. 2012) ……….. 6
McNabb v. Oot Bros., Inc.,
64 A.D.3d 1237, 882 N.Y.S.2d 792 (4th Dep’t 2009) …………….. 5, 6
Melber v. 6333 Main St., Inc.,
91 N.Y.2d 759, 698 N.E.2d 933, 676 N.Y.S.2d 104 (1998) ………. 3, 4, 5
Russell v. Widewaters South Bay Road Assoc., LLP,
289 A.D.2d 1025, 735 N.Y.S.2d 900 (4th Dep’t 2001) …………… 5
Thome v. Benchmark Main Transit Assocs., LLC,
86 A.D.3d 938, 927 N.Y.S.2d 260 (4th Dep’t 2011) ……………… 8
Weininger v. Hagedorn & Co.,
91 N.Y.2d 958, 695 N.E.2d 709, 672 N.Y.S.2d 840 (1998) ………. 8
STATEMENT PURSUANT TO 22 NYCRR § 500.1(f)
WNY Plumbing is not the parent company or subsidiary of any other company
or corporation, nor is it affiliated with any other company or corporation.
WNY Plumbing inadvertently failed to include this statement in its initial brief.
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”) in reply to Plaintiff-Appellant-Respondents’ Reply Brief
and in further support of its own brief. The facts of this matter were addressed in
WNY Plumbing’s initial brief and are incorporated by reference.
To the extent set forth herein, it is respectfully requested that this Court
reverse the decision of the Appellate Division Fourth Department.
A PLAINTIFF WHO IS INJURED WHILE UTILIZING STILTS
CANNOT SUPPORT A LABOR LAW §240(1) CLAIM IN THE
ABSENCE OF PROOF THAT THE STILTS FAILED, BROKE,
COLLAPSED OR WERE DEFECTIVE
The plaintiff-appellant-respondent, Marc A. Nicometi, (hereinafter
“plaintiff” or “Nicometi”), in his reply brief, continues to assert that there are
inherent differences between mobile stilts and stationary ladders and scaffolds. In
doing so, he has relied on cases inapposite to the case at bar. As discussed at length
in WNY Plumbing’s initial Brief, Melber v. 6333 Main Street, 91 N.Y.2d 759, 698
N.E.2d 933, 676 N.Y.S.2d 104 (1998) and the later cases that specifically
discussed incidents involving stilts — not ladders or scaffolding — must guide
this Court’s decision in this case.
The fact that the plaintiff, in Section I of his Argument contained in his
Reply brief, primarily relies upon cases that did not involve stilts at all, further
shows his purposeful attempt to avoid the controlling New York cases on the issue
presented in the case at bar.
There are at least five cases that specifically address incidents due to
slipping or tripping while utilizing stilts that have consistently held that, where the
stilts did not fail and were not defective, such incidents are not covered by Labor
As addressed in WNY Plumbing’s initial brief, 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 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). This Court went on to explain
why such a case does not come within the purview of Labor Law §240(1):
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
Id. at 763.
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 and fell. 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 ;
Russell v. Widewaters S. Bay Rd. Assoc., 289 A.D.2d
McNabb, 64 A.D.3d at 1239.
The same understanding of Melber was also relied upon to dismiss Labor
Law § 240(1) claims in two more recent Supreme Court decisions, Garcia v. Mt.
Airy Estates, Inc., 2012 NY Slip Op 50615(U) (Sup. Ct. Richmond Co. 2012), and
Gonzalez v. Majestic Fine Custom Home, 2012 NY Slip Op 31466U (Sup. Ct.
Queens Co. 2012), copies of which were supplied to this Court by The Vineyards
of Fredonia, LLC with its initial brief.
These five cases clearly and consistently show that, in the absence of the
stilts breaking, failing or otherwise being defective, a Labor Law §240(1) claim
cannot stand, even where a stilt-wearing plaintiff falls and is injured when tripping
or slipping on a floor-level hazard. Mr. Nicometi would have this Court ignore the
relevant case law, arguing that somehow stilts are treated differently than other
protective devices. See appellant-respondent’s reply brief, pp. 2-3. This argument
missed the point, however. WNY Plumbing does not contend that injuries which
occur when a plaintiff is utilizing stilts can never be subject to a Labor Law
§240(1) claim or is somehow subjected to different rules. Rather, such a claim, like
any other claim pursuant Labor Law §240(1), can only be supported when there is
some defect in the stilts. This explanation is conveniently ignored by the plaintiff-
Indeed, a similar scenario was addressed in Gatto v. Clifton Park Senior
Living, LLC, 90 A.D.2d 1387, 935 N.Y.S.2d 366 (3d Dep’t 2011) where the
plaintiff had been using stilts to tape a nine-foot ceiling when one of the bolts on
one stilt broke, which caused the stilt to collapse. 90 A.D.2d at 1387. The
Appellate Division, Third Department, in affirming the trial court’s decision
granting partial summary judgment regarding plaintiff’s Labor Law §240(1) claim,
stated that “[p]laintiff established a prima facie violation of the statute as a matter
of law because the stilt collapsed, thereby failing to perform its function of
supporting him.” Id. (emphasis added). The determinative factor in Gatto was the
failure of one of the bolts which caused the stilt to collapse, not the fact that
plaintiff fell while wearing stilts. Once again, this rule of law has been ignored by
In the instant case, the stilts utilized by Mr. Nicometi did not collapse or fail.
No bolt or strap broke, no metal support bent and the stilts were not otherwise
defective. Therefore, the clear and consistent holdings in the above-cited cases
should be applied and WNY Plumbing respectfully submits that this Court should
determine that Mr. Nicometi’s incident is not covered by Labor Law §240(1).
EVEN IF IT IS DETERMINED THAT LABOR LAW §240(1) APPLIES,
THERE IS STILL A TRIABLE ISSUE OF FACT AS TO WHETHER
PLAINTIFF-APPELLANT-RESPONDENT WAS THE SOLE PROXIMATE
CAUSE OF HIS INJURIES
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. As discussed in WNY
Plumbing’s initial brief, 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).
Moreover, 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 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).
Here, there are clearly issues of fact as to whether the plaintiff’s actions
were the “sole proximate cause” of his injury. Plaintiff’s own testimony
established that he was aware of the presence of the ice and the danger it presented.
[R. 151-52, 281-90]. Plaintiff also testified that he had spoken to his supervisor
with regard to the safety concerns raised by the ice. [R. 157-58, 290]. Notably, Mr.
Nicometi’s supervisor, Mr. Hilliker, testified that he told all three of his installers,
including Mr. Nicometi, “do not insulate that area [where the ice was present].”
[R. 589] (emphasis added).
Thus, there are facts in the Record which establish that Mr. Nicometi chose
to disregard a known condition that he himself identified. More significantly, there
was testimony that he ignored an explicit directive from his supervisor by working
in the area of the alleged incident. This is clearly relevant to whether the plaintiff’s
disregarding of such a directive would make him a recalcitrant worker whose
conduct was the sole proximate cause of the incident. See e.g. Cahill v. Triborough
Bridge and Tunnel Authority, 4 N.Y.3d 35, 823 N.E.2d 439, 790 N.Y.S.2d 74
(2004). 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.
F or 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 alleged accident was 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 the accident in question. Additionally, whether Mr.
Nicometi's actions were the sole proximate cause of this incident is a triable issue
of fact that should be submitted to a jury.
DATED: July 29,2014
BAXTER SMITH & SHAPIRO, P.C.