Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Respondent-Appellant Western New York Plumbing
November 27, 2013
1
BAXTER SMITH & SHAPIRO, P.C.
Attorneys at Law
99 North Broadway
Hicksville, New York 11801
Robert C. Baxter _________________ Tueré T. Rodriguez
Arthur J. Smith Telephone: (516) 997-7330 Kimberley A. Carpenter
Sim R. Shapiro Facsimile: (516) 997-7488 Steven M. Bundschuh
Dennis S. Heffernan www.bssnylaw.com Valerie L. Siragusa
Harold A. Campbell Jennifer Warycha
Margot L. Ludlam Melissa A. Perrotta Marinelli
________ William C. Lawlor
Michael V. McLaughlin
Anne Marie Ladia Garcia _______
Joseph M. Guzzardo*
Louis B. Dingeldey Jr. Maria Peranzo, RN
*Also admitted in NJ
November 27, 2013
Clerk of the Court
New York State Court of Appeals
20 Eagle Street
Albany, New York 12207
Re: Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Respondent-Appellant Western New York
Plumbing
Our File No. 15857 DC MTB
Dear Justices of the Court:
This Letter Brief is submitted to this Court pursuant to 22 NYCRR 500.11 as
Western New York Plumbing-Ellicott Plumbing and Remodeling Co., Inc.’s
submission on the merits of its appeal to this Court. Pursuant to 22 NYCRR
500.1(f), Western New York Plumbing-Ellicott Plumbing and Remodeling Co.,
Inc. hereby states that no parents, subsidiaries or affiliates exist.
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Respondent-Appellant Western New York Plumbing
November 27, 2013
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PRELIMINARY STATEMENT
This Letter Brief is submitted by Defendant-Respondent-Appellant, Western
New York Plumbing – Ellicott Plumbing and Remodeling Co., Inc. (“Defendant-
Respondent-Appellant” or “WNY Plumbing”). This action was brought based
upon personal injuries allegedly sustained by Plaintiff-Appellant-Respondent,
Marc A. Nicometi (“Plaintiff-Appellant-Respondent” or “Mr. Nicometi”), when
Mr. Nicometi fell from stilts on an allegedly icy floor at premises owned by The
Vineyards of Fredonia, LLC. (“The Vineyards”) [R. 29-38, 48-54]. (References to
the Record on Appeal will be delineated as R.__).
Defendant-Appellant-Respondent thereafter moved for partial summary
judgment on liability under Labor Law §240(1). Defendants, Scott Pfohl (“Pfohl”)
and Winter-Pfohl, Inc. (“Winter-Pfohl”) cross-moved for summary judgment
seeking to dismiss Plaintiff-Appellant-Respondent’s Labor Law §240(1) claim.
WNY Plumbing opposed Mr. Nicometi’s motion. The Supreme Court, Erie
County, (Hon. Timothy J. Drury, JSC) granted Plaintiff-Appellant-Respondent’s
motion and denied Winter-Pfohl’s cross-motion. [R. 15-17].
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Respondent-Appellant Western New York Plumbing
November 27, 2013
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By Notice of Appeal dated June 22, 2012, WNY Plumbing appealed Justice
Drury’s Order. [R. 3-6]. Both Winter-Pfohl and The Vineyards also appealed this
Order. [R.7-14].
By Memorandum and Order entered June 14, 2013, the Fourth Department
modified the Order of the Supreme Court by denying plaintiff’s motion. The
Appellate Division Court held that, while the Supreme Court properly concluded
that Labor Law §240(1) applied to Mr. Nicometi’s claim because working on stilts
is a gravity-related risk, there was a triable issue of fact whether Mr. Nicometi’s
actions were the sole proximate cause of his injuries. WNY Plumbing respectfully
contends that the Fourth Department erred in holding that the circumstances of Mr.
Nicometi’s incident are covered by Labor Law §240(1).
In the instant matter, the presence of ice on the floor where Mr. Nicometi
was working was not the risk which brought about the need for the stilts in the first
instance. Additionally, the accident was not the result of the type of hazard that
comes within the purview of Labor Law §240(1). Rather, the accident resulted
from the usual and ordinary dangers at a construction site, namely ice or slippery
substances, to which the extraordinary and statutorily proscribed protections of
Labor Law §240(1) do not extend.
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Respondent-Appellant Western New York Plumbing
November 27, 2013
4
STATEMENT OF FACTS
Mr. Nicometi was working as an employee of 84 Lumber as an insulation
installer at a development project owned by The Vineyards. [R. 100, 115-16, 131].
The Vineyards hired Winter-Pfohl as its general contractor to build ten buildings.
[R. 340]. Plaintiff-Appellant-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-Appellant-Respondent testified that on the day of the accident,
he was using stilts to install the insulation. [R. 165-66]. Mr. Nicometi had never
used a ladder to install insulation and had only used a scaffold once before. [R.
179, 287-88]. He testified that stilts were the proper device for the relevant project
at The Vineyards’ property and that he had all of the tools and devices necessary
for the job. [R. 182-83].
Mr. Nicometi 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-Appellant-
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Respondent-Appellant Western New York Plumbing
November 27, 2013
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Respondent stated a belief that Mr. Hilliker had told an employee of another
contractor to take care of the ice. [R. 157-58].
Mr. Nicometi 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 Mr. Nicometi was using elevated the user between two and
five feet. [R. 173]. Notably, the Plaintiff-Appellant-Respondent testified that the
stilts that he was using were not defective in any way. [R. 196].
Mr. Nicometi’s supervisor, Mr. Hilliker, testified that he arrived at the work
site before the Plaintiff-Appellant-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
working and stated that he warned his workers about the ice and specifically told
them not to insulate that area. [R. 587, 589].
Mr. Hilliker testified that he was present in the doorway of the room where
the Plaintiff-Appellant-Respondent was working and that he had begun to walk
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Respondent-Appellant Western New York Plumbing
November 27, 2013
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toward Mr. Nicometi to tell him to get out of the icy area. It was then that the Mr.
Nicometi slipped and fell onto a bag of insulation. [R. 572-74, 591-92].
ARGUMENT
I. Labor Law §240(1) Does Not Apply to This Matter as It Does Not
Extend to Protecting a Worker Against the Hazard of Slipping On Ice,
as That is Not an Elevation-Related Risk
As this Honorable Court is well aware, not every fall by every worker at a
construction site triggers the statutory protections of Labor Law §240(1).
Such
liability depends upon the “existence of a hazard contemplated in section 240(1)”
and upon “the failure to use, or the inadequacy of, a safety device of the kind
enumerated therein.” Narducci v. Manhasset Bay Assocs., 96 NY2d 259, 267
(2001) citing Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 (1993).
In this case, the Plaintiff-Appellant-Respondent has failed to demonstrate that
either of the requirements of Labor Law §240(1) can be satisfied.
Controlling here is the oft-cited language of this Court: “Labor Law §240(1)
was designed to prevent those types of accidents in which the scaffold, hoist, stay,
ladder or other protective device proved inadequate to shield the injured worker
from harm directly flowing from the application of the force of gravity to an object
or person.” Ross v. Curtis-Palmer Hydro-Elec., Co., 81 NY2d 494, 501(1993)
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Respondent-Appellant Western New York Plumbing
November 27, 2013
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(emphasis in original). Additionally, 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 State
Legislature in enacting the statute. See Cohen v. Memorial Sloan-Kettering Cancer
Center, 11 NY3d 823, 825 (2008); Narducci, 96 N.Y.2d at 267 citing Rocovich v.
Consolidated Edison Co., 78 NY2d 509 (1991).
The Court of Appeals in Rocovich described a hazard encompassed by
§240(1) of the Labor Law as one “related to the effects of gravity where protective
devices are called for … because of a difference between the elevation level of the
required work and a lower level. Rocovich, 78 NY2d at 514. These are the
“elevation-related risks” that the State Legislature designated to receive the special
protections afforded under Labor Law §240(1). Injuries from other types of
hazards are not protected under the statute even if they are caused by the absence
of a scaffold or other required safety device. See Ross, 81 NY2d at 500.
The controlling case regarding tripping or slipping while utilizing stilts is
this Court’s decision in Melber v. 6333 Main Street, 91 NY2d 759 (1998), where
the plaintiff, while using stilts, tripped on an electrical conduit and fell. Therein,
this Court stated:
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Respondent-Appellant Western New York Plumbing
November 27, 2013
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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 NY2d, at 501, supra, quoting
Ross v. Curtis-Palmer Hydro-Elec. Co., 180 AD2d 385,
394 [Mercure, J., dissenting in part]). Thus, plaintiff
must look elsewhere for his remedy.
Melber, 91 NY2d at 763-764 (emphasis added).
On Melber, not only did this Court refuse to award summary judgment to the
plaintiff, it dismissed the Labor Law §240(1) claim altogether:
To be sure, conduit protruding from an unfinished floor –
like a trough filled with hot oil – is a hazard in the
workplace against which employees should be protected.
However, neither the trough nor the conduit is a risk that
can be avoided by proper placement or utilization of one
of the devices listed in Labor Law §240(1). The
protective equipment envisioned by the statue is simply
not designed to avert the hazard plaintiff encountered
here.
Id. at 763.
Indeed, the Melber Court noted that “[h]ad [the stilts] failed while plaintiff
was installing the metal studs in the top of the drywall – work requiring the
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Respondent-Appellant Western New York Plumbing
November 27, 2013
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statute’s special protections – a different case would be presented.” Id. at 763-764.
However, the distinction to be made is not whether plaintiff was injured in the
course of actually performing construction at an elevation, but whether the injury
resulted from a hazard that is contemplated by the statute.
Of critical importance is that neither here, nor in Melber, did plaintiff claim
that his stilts failed (e.g., that they buckled, bent, broke, came apart, collapsed,
etc.). Instead, Mr. Nicometi claimed that he slipped on ice, a condition “wholly
unrelated to the hazard [i.e., installing insulation at ceiling level] which brought
about [the] need [for the stilts] in the first instance” Id.
This reasoning in Melber was followed by the Appellate Division, Fourth
Department, in both Russell v. Widewaters S. Bay Rd. Assocs., LLP, 289 AD2d
1025 (4th Dept 2001), and McNabb v. Oot Bros., Inc., 64 AD3d 1237 (4th Dept
2009), which are analogous to the instant case in that in both of those cases the
plaintiff, while working on stilts, tripped over an electrical cord, rather than slipped
on ice. 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
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Respondent-Appellant Western New York Plumbing
November 27, 2013
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while working on stilts and, in doing so, “did not
encounter a hazard contemplated by the statute” (Melber
v. 6333 Main St., 91 NY2d 759, 761).
Russell, 289 AD2d at 1025.
Similarly, in McNabb, plaintiff was working on stilts when he tripped over
an electrical cord, causing him to fall and sustain 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 NY2d 759, 763-764 [1998];
Russell v. Widewaters S. Bay Rd. Assoc., 289 AD2d 1025
[2001]).
McNabb, 64 AD3d at 1239.
At the Supreme Court level, Melber was also relied upon as a basis to
dismiss Labor Law §240(1) claims in two recent decisions: Garcia v. Mt. Airy
Estates, Inc., 35 Misc 3d 1208A (Sup. Ct. Richmond Cty. 2012); and Gonzalez v.
Majestic Fine Custom Home, 2012 NY Slip Op 31466U (Sup. Ct. Queens Cty.
2012).
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Respondent-Appellant Western New York Plumbing
November 27, 2013
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In the instant matter, the facts are undisputed that the Plaintiff-Appellant-
Respondent fell when he encountered ice on the floor. [R. 850]. Mr. Nicometi did
not fall off the stilts. Moreover, his injury did not flow directly from the force of
gravity to the stilts. Mr. Nicometi testified that there was nothing wrong with his
stilts and that he slipped and fell on an icy floor. Thus, he was not exposed to any
risk that any of the safety devices enumerated in Labor Law §240(1) would have
protected against.
It is respectfully submitted that 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-Appellant-Respondent allegedly
encountered, namely an icy floor.
In his Letter Brief, Plaintiff-Appellant-Respondent cites Matos v. Garden
State Brick Face, 272 AD2d 70 (1st Dept 2000), in support of his contention that
Labor Law §240(1) should apply to his case. In Matos, the Appellate Division,
First Department read Melber as depending on the fact that the plaintiff was
walking to retrieve a tool, rather than performing work at a height:
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Respondent-Appellant Western New York Plumbing
November 27, 2013
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Here, in distinction to Melber, where the plaintiff was
injured in a fall from stilts as he walked down a hallway
to retrieve a tool, plaintiff was injured in the course of
actually performing construction at an elevation.
272 AD2d at 70-71. Respectfully, the Appellate Division, First Department’s
application of this Court’s decision in Melber is clearly contrary to holding of
Melber, as well as to the holdings of the Fourth Department in Russell and
McNabb.
WNY Plumbing contends that Plaintiff-Appellant-Respondent’s reliance on
Matos is incorrect. The Court of Appeals’ holding in Melber was clear, as
evidenced by it being followed by the later decisions of the Fourth Department in
Russell and McNabb, as well as the Supreme Court decisions in Garcia and
Gonzalez. The only divergent decision — other than the instant case — is Matos.
WNY Plumbing respectfully contends that this Court should apply the clear
holding of Melber and determine that Mr. Nicometi’s incident is not covered by
Labor Law §240(1).
II. Sole Proximate Cause is a Triable Issues of Fact
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
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Respondent-Appellant Western New York Plumbing
November 27, 2013
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was the proximate cause of the plaintiff’s injuries. See, e.g. Blake v.
Neighborhood Hous. Serv. of New York City, Inc., 1 NY3d 280, 289 (2003). The
Labor Law is violated when a contractor, owner or agent thereof does not provide
“proper protection” to a plaintiff and that such failure caused the plaintiff’s injury.
Id. at 289.
Notably, even assuming arguendo that there is a violation of Labor Law
§240(1), a plaintiff must show that the violation was a “contributing cause of his
fall.” Blake v. Neighborhood Hous. Serv. Of New York City, Inc., 1 NY3d at 289;
see also Duda v. John W. Rouse Constr. Corp., 32 NY2d 405, 410 (1973).
Moreover, where “a reasonable jury could [conclude] that a plaintiff’s actions were
the sole proximate cause of his injuries,” liability cannot be decided as a matter of
law, but must be submitted to the jury. Weininger v. Hagedorn & Co., 91 NY2d
958, 960 (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
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Respondent-Appellant Western New York Plumbing
November 27, 2013
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Homes, Inc., 27 AD3d 1197, 1198 (4th Dept 2006); Thome v. Benchmark Main
Transit Assocs., LLC, 86 AD3d 938, 939-940 (4th Dept 2011).
While the Appellate Division, Fourth Department found that Labor Law
§240(1) applies to this matter, it did not determine, or express a conclusion as to
whether Mr. Nicometi’s own actions were the sole proximate cause of his injury.
Rather, that Court found that there is a question of fact as to whether the Plaintiff-
Appellant-Respondent’s own conduct — in using stilts to walk on a known icy
surface — was the sole proximate cause of his accident. See, e.g. Gordon v. E. Ry.
Supply Inc., 82 NY2d 555, 562 (1993) (“plaintiff was working on a ladder and thus
was subject to an ‘elevation-related risk.’ The ladder did not prevent plaintiff from
falling; thus the “core” objective of section 240 (1) was not met. Accordingly,
plaintiff is within the protection of the statute if his injury was proximately caused
by the risk”); see also Andrews v. Ryan Homes, 27 AD3d 1197 (4th Dept 2006).
There are clearly issues of fact as to whether the Plaintiff-Appellant-
Respondent’s actions were the “sole proximate cause” of his injury. Notably, the
Plaintiff-Appellant-Respondent’s supervisor testified that he warned Mr. Nicometi
against working on ice. [R. 587-89]. This fact is essentially admitted by the
Plaintiff-Appellant-Respondent who also testified that he raised concerns to his
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Respondent-Appellant Western New York Plumbing
November 27, 2013
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supervisor about working on ice. [R. 151, 281, 290, 318]. Thus, there are facts in
the Record which establish that the Mr. Nicometi negligently chose to disregard a
known danger that he himself identified, as well as the notice and instruction given
by his Supervisor, when he attempted to utilize the stilts he was provided to walk
on the open and obvious patch of ice, causing himself to fall.
The device that Mr. Nicometi used clearly was not defective as he has
admitted that he fell when he slipped on ice. There was no failure or defect in the
stilts. As such, the jury must, therefore, be allowed to determine whether Mr.
Nicometi’s own negligent behavior while using the properly designed stilts was the
“sole proximate cause” of his fall.
Plaintiff-Appellant-Respondent argues that merely providing safety
instructions is insufficient. However, the facts of this matter are distinguishable
from the cases cited by the Plaintiff-Appellant-Respondent.
Unlike Ewing v. ADF Const. Corp., 16 AD3d 1085 (4th Dept 2005), the
instant matter did not merely involve “providing safety instructions” to the
Plaintiff-Appellant-Respondent. Rather, there is testimony that the Plaintiff-
Appellant-Respondent expressly disregarded the instruction of his Supervisor to
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Respondent-Appellant Western New York Plumbing
November 27, 2013
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avoid working in the area where the ice was present. In fact, Mr. Nicometi’s
Supervisor testified that he instructed Mr. Nicometi 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-Appellant-
Respondent to abide by a clear, simple and safety-related command by his
employer is the sole proximate cause of the subject.
As this Court is well aware, the function of the Trial Court on a motion is
not to resolve credibility issues. 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 NY2d 958, 960 (1998) (citation omitted). 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, this 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 AD3d 1197, 1198 (4th
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Respondent-Appellant Western New York Plumbing
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Dept 2006); Thome v. Benchmark Main Transit Assocs., LLC, 86 AD3d 938, 939-
940 (4th Dept 2011).
As there is testimony that the Plaintiff-Appellant-Respondent was expressly
instructed by his Supervisor “do not insulate that area [where the ice was present]”
[R. 589], Plaintiff’s motion should not have been granted.
CONCLUSION
For all the foregoing reasons, this Court should reverse that portion of the
Appellate Division, Fourth Department’s Decision affirming that Labor Law
§240(1) applied to the Plaintiff-Appellant-Respondent. In order to win 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-
Appellant-Respondent herein has failed to do so. Mr. Nicometi admitted that there
was no defect in the stilts that he was using. Rather, the accident was allegedly
caused by his slipping on ice. Simply put, ice is not a risk that these devices are
intended to protect against. As such, Labor Law §240(1) is inapplicable to
accident in question.
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APL-2013-00280
Letter Brief for the Respondent-Appellant Western New York Plumbing
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Additionally, whether Mr. Nicometi’s actions were the sole proximate cause
of this incident is a triable issue of fact which should be submitted to a jury.
Respectfully submitted,
BAXTER SMITH & SHAPIRO, P.C.
By: ____________________________
Michael V. McLaughlin
MVM/ldm