0
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To be Argued by:
LAURENCE D. BEHR, ESQ.
Time Requested for Argument:
(30 Minutes)
STATE OF NEW YORK
Court of Appeals
APL-2013-00280
MARC A. NICOMETI,
Plaintiff-Appellant-Respondent,
vs.
THE VINEYARDS OF FREDONIA, LLC, WINTER-PFOHL, INC.,
Defendants-Respondents-Appellants,
THOMAS WHITNEY and SCOTT PFOHL,
Defendants.
Erie County Index No. 2008-3306.
SCOTT PFOHL,
Third-Party Plaintiff,
WINTER-PFOHL, INC.,
Third-Party Plaintiff-Respondent-Appellant,
vs.
WESTERN NEW YORK PLUMBING-ELLICOTT PLUMBING
AND REMODELING CO., INC.,
Third-Party Defendant-Respondent-Appellant.
Erie County Index No.: 2008-3306-TP3.
Appellate Division Docket No. CA 12-01962.
REPLY BRIEF ON BEHALF OF
DEFENDANT-RESPONDENT-APPELLANT
THE VINEYARDS OF FREDONIA, LLC
BARTH SULLIVAN BEHR
Attorneys for Defendant-Respondent-
Appellant The Vineyards
of Fredonia, LLC
43 Court Street, Suite 600
Buffalo, New York 14202-3101
Telephone: (716) 856-1300
Facsimile: (716) 856-1494
LAURENCE D. BEHR, ESQ.
Of Counsel
Date of Completion: July 27, 2014
BATAVIA LEGAL PRINTING, INC.— Telephone (866) 768-2100
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES. ........................................................................ ii
ARGUMENT:
POINT I The Plaintiff’s Fall Resulted From a Slippery
Floor, Like Many Slip-And-Fall Accidents,
Not From An Elevation-Related Risk, And
Melber Requires Dismissal Of His Section
240(1) Claim. ................................................................... 1
1. This Court’s Melber decision is
correct, and requires dismissal of
the section 240(1) claim......................................... 1
2. “Placement” is not an issue in regard to a
worker’s fall while working from stilts. ................ 2
3. The “Baker’s scaffold” that the plaintiff
argues ought to have been used also
would not have prevented the risk that
the plaintiff might fall due to ice on the
floor. ...................................................................... 4
POINT II Alternatively, the Lower Court Correctly Ruled
There Is a Question Of Fact as to Whether the
Plaintiff’s Culpable Conduct Was So Great As
To Constitute the Sole Proximate Cause Of His
Accident. .......................................................................... 6
CONCLUSION............................................................................................... 8
ADDENDUM ............................................................................................... 9
TABLE OF AUTHORITIES
Page(s)
CASES:
Andrews v Ryan Homes, Inc., 27 AD3d 1197 (4 Dept. 2006). ................ 7th
Klein v. City of New York, 89 N.Y.2d 833 (1996)...................................... 2
Medical Soc’y of State of N.Y. v. New York State Dept. of Health,
83 N.Y.2d 447 (1994)........................................................................... 3
Melber v. 6333 Main Street, Inc., 91 N.Y.2d 759 (1998). ..................... 1,2,3,5
Senese v. J. Kokolakis Contracting, Inc.,
Index No. 5709/10 (S. Ct. Queens Co. 1-16-2013),
2013 NY Slip Op 30220(U). ................................................................ 4
Thome v. Benchmark Main Trans. Assoc.,
86 A.D.3d 938 (4th Dept 2011) . .......................................................... 7
Wonderling v. CSX Transporation, Inc.,
34 A.D.3d 1244 (4th Dept 2006). ......................................................... 7
STATUTES:
Labor Law § 200. ............................................................................................ 5
Labor Law § 240(1). ................................................................................. 3,4,5
Labor Law § 241(6). ....................................................................................... 5
OTHER AUTHORITIES:
McKinney's Cons. Laws of NY, Book 1, Statutes § 141. ............................... 3
http://www.scaffoldingdepot.com/rollingscaffold.htm. .................................. 4
-ii-
ARGUMENT
POINT I
The Plaintiff’s Fall Resulted From
A Slippery Floor, Like Many
Slip-And-Fall Accidents, Not
From An Elevation-Related Risk,
And Melber Requires Dismissal
Of His Section 240(1) Claim.
This reply brief submitted on behalf of the respondent-appellant Vineyards
of Fredonia LLC (“Vineyards”), refutes the first of the two contentions advanced
in the plaintiff's reply brief, served in opposition to the appeals of Vineyards and
the respondent-appellant Winter-Pfohl, Inc. (“WPI”).
1. This Court’s Melber decision is correct, and requires dismissal of the
section 240(1) claim.
The plaintiff's first contention, boiled down, is that a slip-and-fall caused by
ice on a floor should be deemed to have resulted from an “elevation-related risk,”
simply because the worker was walking on stilts at the time. This contention
simply defies the explicit teaching of this Court’s unanimous, and correctly
decided, Melber v. 6333 Main Street, Inc., 91 N.Y.2d 759 (1998):
The stilts, moreover, performed the function Labor Law §
240(1) required of them: allowing plaintiff to safely
complete his work at a height. Had they failed while
plaintiff was installing the metal studs in the top of the
drywall — work requiring the statute's special protections
— a different case would be presented. But here, as was
2
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,
81 N.Y.2d, at 501, supra, quoting Ross v Curtis-Palmer
Hydro-Elec., 180 A.D.2d 385, 394 [Mercure, J., dissenting
in part]). Thus, plaintiff must look elsewhere for his
remedy.
.91 N.Y.2d at 763-764 (emphasis added).
The plaintiff's insistence that his stilts “failed” is misplaced, because his
stilts, while they failed to prevent him from slipping on ice, did not fail in the sense
“failed” is used in Melber, i.e., they did not fail to protect him from an elevation-
related risk.
2. “Placement” is not an issue in regard to a worker’s fall while working
from stilts.
The plaintiff's continued effort to assimilate his case to Klein v. City of New
York, 89 N.Y.2d 833 (1996), in which the plaintiff fell because his ladder was
placed on a slippery floor, is unavailing because such placement ran afoul of the
statute’s language specifically requiring proper “placement” of the enumerated
3
devices. When a worker is using stilts neither the owner nor the general
contractor can possibly place each of his steps.
So in Melber, where if the worker’s stilts had been “placed” as he walked
so as not to encounter the conduit protruding from the floor, he would not have
fallen, the ill-placement of the worker’s steps could not be laid at the door of
owner and general contractor. This is proper because the Scaffold Law is not to
be construed as requiring such an absurd and unjust outcome, and Melber
properly avoided doing so.
[A]n interpretation [that] leads to a patently absurd result
. . . contravenes basic principles of statutory construction
(see, McKinney's Cons. Laws of NY, Book 1, Statutes § 141
["the construction to be adopted is the one which will not cause
objectionable results, or cause inconvenience * * * or
absurdity"]).
Medical Soc’y of State of N.Y. v. New York State Dept. of Health, 83 N.Y.2d
447,451 – 452 (1994). In the same section of 1 McKinney’s Consol. Laws,
Statutes, this Court cited in the above case, at page 283, it is stated: “The court will
not interpret a statute to require impossibility.” (Footnote omitted.) To interpret
Labor Law § 240(1) to require owners and general contractors to place each step of
a worker on stilts so that he avoids any floor-level hazards—or for that matter even
to require the complete elimination of all possible floor-level hazards at a
construction site, would be to require an impossibility, as well as an absurdity.
4
3. The “baker’s scaffold” that the plaintiff argues ought to have been used
also would not have prevented the risk that the plaintiff might fall due
to ice on the floor.
The plaintiff argues, at page 6 of his reply brief, that the owner and general
contractor, instead of stilts, should have furnished a “baker’s scaffold” for his
work, supposedly as required by the Industrial Code. However, such a scaffold,
which is nothing more than an elevated work platform on wheels (see
http://www.scaffoldingdepot.com/rollingscaffold.htm), would not have protected
him any more than stilts from the risk of slipping on the ice and falling.
The plaintiff, using a baker’s scaffold, would have been forced to mount and
dismount the scaffold many times in the course of installing ceiling insulation, and
he might easily have slipped on the ice when either getting off or onto the scaffold,
and sustained the same or a worse injury. The section 240(1) claim of a worker
who injured himself by misstepping when he dismounted from a baker’s scaffold,
allegedly due to the lack of lighting, was dismissed in Senese v. J. Kokolakis
Contracting, Inc., Index No. 5709/10 (S. Ct. Queens Co. 1-16-2013), 2013 NY
Slip Op 30220(U)
1
, the court stating:
1
Pertinent portions of this lengthy unreported slip opinion are reproduced in the Addendum
hereto.
5
"The extraordinary protections of Labor Law § 240 (1) extend
only to a narrow class of special hazards, and do `not
encompass any and all perils that may be connected in some
tangential way with the effects of gravity'" (Nieves v Five Boro
A.C. & Refrig. Corp., 93 NY2d 914, 915-916 [1999], quoting
Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501
[1993]). "Where an injury results from a separate hazard
wholly unrelated to the risk which brought about the need for
the safety device in the first instance, no section 240 (1) liability
exists" (Nieves v Five Boro A.C. & Refrig. Corp., supra at 915,
citing Melber v 6333 Main St., 91 NY2d 759, 763-764 [1998]).
Here, the undisputed evidence indicates that the fall resulted
from a separate hazard wholly unrelated to the danger that
brought about the need for the scaffold in the first instance (see
Nieves v Five Boro A.C. & Refrig. Corp., supra at 916; see also
Melber v 6333 Main St., supra; Aquilino v E.W. Howell Co.,
Inc., 7 AD3d 739 [2004]; Masullo v City of New York, 253
AD2d 541 [1998]).
Slip Opinion 6 (emphasis added).
This plaintiff, like the plaintiff in Melber, is not without a remedy, having
still intact his claims under N.Y. Labor Law §§ 200 and 241(6). However, this
Court’s solidly reasoned, unanimous Melber decision bars him from the absolute
liability protections of section 240(1).
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POINT II
Alternatively, the Lower Court
Correctly Ruled There Is a Question
Of Fact as to Whether the Plaintiff's
Culpable Conduct Was So Great As
To Constitute the Sole Proximate Cause
Of His Accident.
Regarding the plaintiff's arguments that neither the issuing of an instruction
to avoid the ice, nor his prior admitted awareness of the ice’s presence, nor both
together, should be deemed to raise an issue of fact as to whether the plaintiff's
conduct was the sole proximate cause of his accident, were amply addressed, and
refuted, in Point II(A) and (B) Vineyards’ initial brief. To sum up:
The presence of a section 240(1) violation does not eliminate
the potential for a plaintiff's conduct to be deemed the “sole proximate
cause,” but is in instead a precondition for consideration of such question.
See Vineyards’ prior brief, Point II(A).
Both the a warning to avoid an unsafe practice or condition, and a
worker’s awareness of a dangerous condition, or either alone, may constitute
evidence of the extent of the plaintiff's negligence, and whether it is
completely to blame for the accident so as to be found its sole proximate
cause. See Vineyards’ prior brief, Point II(B). Indeed, as previously briefed,
three of the lower court’s own prior decisions held there to be questions of
7
fact as to “sole proximate cause,” where the plaintiff had been instructed to
avoid an unsafe practice or condition, and was fully aware of same. Thome
v. Benchmark Main Trans. Assoc., 86 A.D.3d 938 (4th Dept 2011);
Wonderling v. CSX Transporation, Inc., 34 A.D.3d 1244 (4th Dept 2006);
Andrews v Ryan Homes, Inc., 27 AD3d 1197 (4
th
Dept. 2006). All three
cases are very similar to this case factually, the closest being perhaps Thome,
in which the lower court stated:
We agree, however, with the further contention of
defendants that they raised a triable issue of fact whether
plaintiff's actions were the sole proximate cause of his
injuries. In opposition to the motion, defendants
submitted evidence that plaintiff was aware that holes
had been cut into the concrete floor of the building in
which he was working and that, on the morning of his
accident, plaintiff had been specifically directed not to
operate the scissor lift in the area where the holes had
been cut. Further, defendants submitted evidence that
plaintiff drove the raised lift into that area while looking
at the ceiling rather than where the lift was going.
Consequently, "[u]nlike those situations in which a safety
device fails for no apparent reason, thereby raising the
presumption that the device did not provide proper
protection within the meaning of Labor Law § 240 (1),
here there is a question of fact [concerning] whether the
injured plaintiff's fall [resulted from] his own misuse of
the safety device and whether such conduct was the sole
proximate cause of his injuries" (Bahrman v Holtsville
Fire Dist., 270 AD2d 438, 439 [2000]).
86 A.D.3d at 939-940 (emphasis added).
8
CONCLUSION
For the foregoing reasons, and in accord with the authorities cited and
discussed herein and in the prior briefs of all defendants, the respondent-appellant
Vineyards of Fredonia, LLC, respectfully requests that this court issue an order
reversing the order appealed from and dismissing the plaintiff's Labor Law
§ 240(1) claim; or, alternatively, affirming the lower court’s order to the extent that
it held there to be a question of fact regarding whether the plaintiff's conduct was
the “sole proximate cause” of his accident.
July 27, 2014
Laurence D. Behr, Esq.
ADDENDUM
SENESE v. J. KOKOLAKIS CONTRACTING,
INC., ET AL., 5709/10 (1-16-2013)
2013 NY Slip Op 30220(U)
Supreme Court of the State of New York,
Queens County.
January 16, 2013
[EDITOR'S NOTE: This case is unpublished as
indicated by the issuing court.]
JANICE A. TAYLOR, Judge.
Page-2
Upon the foregoing papers it is ordered that
the motions and cross-motions are considered
together and decided as follows:
Plaintiffs in this negligence/labor law case
seek damages for personal injuries sustained by
plaintiff Kenneth Senese on July 28, 2008, while
employed as a union carpenter with Pabco. It is
alleged that plaintiff Kenneth Senese fell off a
baker's scaffold while performing construction
work at premises located at 80-45 Winchester
Blvd., Queens, New York. The facility is known
as Creedmoor Psychiatric Facility. The
construction project was known as the Bernard
Fineson Project.
The project entailed the construction of nine
buildings identified as buildings numbered "1"
through "8", and the "Program Building" or
"Administration Building". At the time of the
accident, plaintiff was working on a scaffold in
the basement of building "4", installing sheetrock
on the ceiling. As plaintiff Kenneth Senese
stepped down from the scaffold, the temporary
lights went out inside the building. As a result,
plaintiffs alleges that plaintiff Kenneth Senese
mis-stepped from the scaffold and sustained
injuries to his knee.
DASNY owns the premises. DASNY entered
into a prime contract with Kokolakis to act as
contractor for general construction of the project.
DASNY also entered into a prime
Page-3
contract with Laws for Laws to perform site
work and utilities work. This contract required
Laws, as it relates to electric work, to install
temporary power around the perimeter of the
site, which terminated approximately fifteen (15)
feet away from each structure to be built. Laws
then entered into a sub-contract agreement with
Hellman to install this temporary electric power.
This temporary power has been referred to as the
"temporary power loop".
Hellman also maintained the temporary power
loop, which included poles with electrical panels
that went around the campus. The temporary
power loop was installed so that the contractors
could have power for the individual buildings.
The power source for the temporary power loop
came from an on-site power plant that distributed
the power throughout the entire facility.
Eldor provided and distributed both the
permanent and temporary electricity to buildings
"1" through "8" The temporary power came from
the temporary power loop.
The parties each move, or cross-move, for
summary judgment dismissing all claims and
cross-claims against it on the ground that it did
not cause, or contribute to, the temporary lighting
failure which caused or contributed to the subject
accident.
Facts
Paul Goncalves testified in July 2008, as
follows: he was employed as the Project
Manager for DASNY at the Creedmoor project.
DASNY performs design and construction as
well as financing of public benefits projects.
Goncalves explained that the duties of a Project
Manager include managing the job in terms of
9
completion of the scope of the work and time
parameters, gathering information, receiving
day-to-day reports from the Construction
Manager and his physical presence at the site on
a daily basis. The Creedmoor project entailed the
replacement of a campus facility consisting of
nine (9) buildings on the Creedmoor campus in
Queens Village.
Hellman was an electrical subcontractor that
performed the site work that pertained to the
temporary electric and permanent electric
installations. Hellman installed the temporary
power loop that provided temporary power to the
buildings under construction. Specifically,
Hellman installed poles with transformers along
the perimeter of the site to support the
construction activities, and had a daily presence
following the installation of the power loop. The
power loop was the responsibility of Hellman to
install and maintain.
Goncalves further testified that Eldor was
responsible for the distribution of the temporary
power within each building; and that Kokolakis
was responsible for the general construction of
Buildings 1-6. Although Goncalves testified that
he did not
Page-4
know the cause of the outage, he stated that
based upon the facts as relayed by certain
incident reports, the power outage was caused
either by an interruption of service from the
temporary power loop or an interruption of
service from the source of the power. Goncalves
testified that Creedmoor was the owner of the
power plant, not DASNY.
Ken Jeffries testified on behalf of Pabco as
follows: at the time of the accident, he was
employed by Pabco as a carpenter foreman, and
Pabco is in the business of carpentry which
includes performing finishing work, sheetrock
framing and installation. As a foreman, Jeffries
would be assigned to a construction project and
remain on the site all day. Jeffries further
testified that there were two accepted methods by
which a worker dismounts from a Baker's
scaffold and they are either by climbing down
the bars at either end of the scaffold, or by using
a ladder and not by stepping off the middle
without holding on to the supports. If a Pabco
worker required a ladder to dismount from a
Baker's scaffold, ladders are "absolutely"
available at the site; they were maintained in
building #4 on either the first floor or the
basement where plaintiff had been working.
Joseph Russo testified on behalf of Eldor as
follows: in July 2008, he was employed by Eldor
as a journeyman electrician and worked as a "sub
foreman" on the Creedmoor project. The scope
of work for Eldor was to supply the temporary
power and lighting to buildings #1-8, during the
construction project. Hellman, the site
electrician, installed poles around the perimeter
of the project to carry the temporary power from
the existing main feed of the site. Hellman also
installed poles that attached temporary breaker
panels that provided the power for the residential
buildings. Eldor used the panels to carry the
power by underground conduit to the individual
buildings, which had a temporary panel box in
each building; the Hellman panel on the poles
was five feet off the ground. Russo further
testified that he believes the outage occurred on
the entire project site. Thus, the outage was not
related to Eldor's equipment since it had to do
with the entire power loop installed by Hellman.
Additionally, Russo testified that, with regard to
the July 28, 2008 incident, the power was out for
about one hour and then, Russo testified, he and
his crew left at 2:30 p.m. The power was restored
when he returned with his crew the next
morning.
Daniel Bindus testified on behalf of Hellman.
He stated that he was the Project Manager for
Hellman on the Creedmoor project. Bindus
testified that Hellman was responsible for the
installation and maintenance of the temporary
power system, and that there was a system in
10
place for the provision of temporary power,
which provided lighting and power for the
workers to perform construction. Bindus
identified Eldor as the company which installed
its own breakers and feeders within the ones
supplied by Hellman, to supply the power to
individual buildings. Finally, Bindus testified
that Hellman's power supply "stops at
Page-5
the pole" (outside), which houses Hellman's
electric breaker boxes; Eldor then brings the
power into the buildings.
William Gray (a non-party) testified that he is
employed as a plant utilities engineer III at
Creedmoor. His job responsibilities include
overseeing the electric, plumbing and carpentry
shops, their supervisors at the facility and
assisting the "power plant" as needed. Gray
testified that the power to the power plant
originated from the street from Con Edison
facilities. Gray identified a plant logbook, which
was the power plant operator's logbook for
Creedmoor, documenting events of significance
associated with the daily operations of the power
plant. Gray specifically reviewed the logbook for
the date of the accident and found that there was
no indication of a power outage anywhere in the
logbook for July 28, 2008. As such, Gray
testified, the power outage could not have been a
total outage at Creedmoor, but rather the power
outage [had to be] confined to the temporary
power supply installed by Hellman.
Non-party Consolidated Edison submitted an
affidavit by Gale D. Dakers, dated January 12,
2012, stating that a search was made and
Consolidated Edison has no record of any
electric power outages or electrical service
interruptions which occurred on July 28, 2008
for Creedmoor.
* * *
Page-6
* * *
Motion by Pabco
The branch of the motion by Pabco which is to
dismiss plaintiffs' claim under Labor Law §
240(1), is granted as unopposed, and otherwise
on the merits. "To recover under Labor Law §
240 (1), a plaintiff must demonstrate that there
was a violation of the statute and that the
violation was a proximate cause of the accident"
(Marin v Levin Props., LP., 28 AD3d 525
[2006], citing Blake v Neighborhood Hous.
Servs. of N.Y. City, 1 NY3d 280, 287 [2003]).
"The extraordinary protections of Labor Law §
240 (1) extend only to a narrow class of special
hazards, and do `not encompass any and all perils
that may be connected in some tangential way
with the effects of gravity'" (Nieves v Five Boro
A.C. & Refrig. Corp., 93 NY2d 914, 915-916
[1999], quoting Ross v Curtis-Palmer Hydro-
Elec. Co., 81 NY2d 494, 501 [1993]). "Where an
injury results from a separate hazard wholly
unrelated to the risk which brought about the
need for the safety device in the first instance, no
section 240 (1) liability exists" (Nieves v Five
Boro A.C. & Refrig. Corp., supra at 915, citing
Melber v 6333 Main St., 91 NY2d 759, 763-764
[1998]). Here, the undisputed evidence indicates
that the fall resulted from a separate hazard
wholly unrelated to the danger that brought about
the need for the scaffold in the first instance (see
Nieves v Five Boro A.C. & Refrig. Corp., supra
at 916; see also Melber v 6333 Main St., supra;
Aquilino v E.W. Howell Co., Inc., 7 AD3d 739
[2004]; Masullo v City of New York, 253 AD2d
541 [1998]).
* * *
Page-14
* * *
11
Conclusion
Defendant/third-party defendant/second third-
party defendant Laws' motion for summary
judgment is granted. The complaint and all cross-
claims are hereby dismissed as against this
defendant.
The branch of the motion by Pabco which is to
dismiss plaintiff's claim under Labor Law §
240(1), is granted. The branches of Pabco's
motion which are to dismiss certain aspects of
plaintiff's claim under Labor Law 241 (6), based
upon violations of sections 12 NYCRR 23-1.7(d)
and (e), 23-1.21 and 23-2.1, are granted. The
branch of the motion by Pabco which is to
dismiss the causes of action by DASNY and
Kokolakis for breach of contract for allegedly
failing to procure insurance naming those parties
as additional insureds, is granted. The branch of
the motion by Pabco which is to dismiss
DASNY's claims for contractual indemnification
and defense costs, is granted.
The branch of the motion by defendant/third-
party plaintiff DASNY which is to dismiss
plaintiff's claim under Labor Law § 241(6),
based upon a violation of section 23-1.30, is
denied. The branches of the motion which seek
contractual indemnification for defense costs
from Eldor, Hellman and Kokolakis, are granted.
The branch of the motion by DASNY which is to
dismiss plaintiff Labor Law § 200 and common
law negligence claim against it is denied. The
branches of the motion by DASNY which seek a
conditional judgment on the issue of contractual
indemnification from Eldor and Kokolakis are
granted. The branches of the motion by DASNY
which seek contractual indemnification and
defense costs from Pabco and Laws are denied.
The branches of the motion by DASNY which
seek contractual indemnification for defense
costs from Eldor, Hellman and Kokolakis, are
granted.
Defendant Eldor's motion for summary
judgment is denied.
Defendant Hellman's motion to renew its prior
motion for summary judgment is granted. Upon
renewal, defendant Hellman's motion for
summary judgment is denied.
Plaintiffs' cross-motion for summary judgment
on the issue of liability on their claim pursuant to
Labor Law § 241(6), predicated upon a violation
of 23-1.30, is denied.
Defendant/third-party plaintiff Kokolakis'
motion for defense costs and contractual
indemnification from Pabco is denied.
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affiliates
12
