Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Appellant-Respondent Nicometi
November 6, 2013
November 6, 2013
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 Appellant-Respondent Nicometi
Dear Justices of the Court:
Please accept this letter pursuant to 22 NYCRR Part 500.11 as Marc Nicometi’s
submission on the merits of his appeal to this Court. Enclosed herewith, in addition to the two
additional copies of this letter, and the affidavit of its service (without enclosures) upon all
parties, please find three copies of each of the following items produced as part of the appeal
below in the Appellate Division Fourth Department:
Appellate Division Record on Appeal (Two Volumes)
Brief of Winter-Pfohl
Respondent’s Brief of Marc Nicometi to Winter-Pfohl Appeal
Reply Brief of Winter-Pfohl
Brief of Vineyards of Fredonia
Brief of Western New York Plumbing
Respondent Nicometi’s Brief to Vineyards and Western New York Plumbing Appeals
Reply Brief of Western New York Plumbing
Also enclosed for the Court’s convenience please find an additional copy of both of the
Appellate Division decisions on this matter (the original decision and the one by which leave
was granted). Contemporaneous with this filing, Appellant-Respondent Nicometi is filing the
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Appellant-Respondent Nicometi
November 6, 2013
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electronic copies of these materials, named and filed in accordance with the Court’s rules. If
anything further is required please contact the undersigned.
Preliminary Statement
As indicated in the Pre-appeal Statements on this matter, the issues here are not of the
great complexity frequently encountered by this Court; rather, the issues are very straight
forward. As further detailed below, and in the records and other submissions, there are really
only two basic questions. These questions arise in this circumstance where, admittedly, the
injured worker was provided with only a single safety device (stilts) for his use installing
insulation in a newly constructed skeletal ceiling over a floor that was known to be partially
covered with a slippery substance (ice) located in a four foot by four foot unguarded and
unabatedly hazardous section of a room that the worker was directed to insulate. The first
question is:
Where a worker actively engaged in an elevated task, and elevated by a pair
of stilts, falls across the elevation differential requiring those stilts in the first
place, and where that fall was precipitated by the stilts slipping out from under
him, failing, and collapsing to the floor, due to known and open ice located at
the lower terminus of that same elevation differential, does the precipitation of
that unprotected fall by that unabated ice negate the otherwise controlling
nondelegable mandates of Labor Law §240(1)?
There is also on this record an allegation, by a single uncorroborated witness, of a warning and
instruction to avoid that known icy hazard by insulating around but not immediately over it.
This alleged instruction is independently and unanimously denied (not unremembered but
denied) by each and every individual (all of the three workers on site that day) alleged to have
received it. The second question is:
Is the allegation of this dubious warning (for the first time five years after
the incident) sufficient to raise a material question of fact?
This second question urged by Mr. Nicometi is not asserting a credibility argument, though
certainly the allegation could be held to be insufficient on that ground as well. Rather this second
question inquires into the sufficiency of a warning or instruction to cure the deficiencies of an
inadequate safety device in any circumstances, but especially in these circumstances. The
Appellant-Respondent Nicometi urges that these two decisive questions are both obviously
answerable only in the negative, and that the Appellate Division majority should be reversed to
the extent that it reversed the Trial Court’s grant of Summary Judgment in Appellant-Respondent
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Appellant-Respondent Nicometi
November 6, 2013
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Nicometi’s favor. The two Justices dissenting from the subject Appellate Division decision
(Hon. Gerald J. Whalen and Hon. Eugene M. Fahey) urged this same alternate outcome.
Statement of Uncontroverted Material Facts
On the date and at the time of the incident Mr. Nicometi (Appellant-Respondent) was
engaged in the course of his employment as a construction worker actively installing insulation
in the newly constructed ceilings of a multi-unit apartment structure from an elevated working
position on stilts, with his hand actively affixing insulation into the ceiling rafters according to
multiple unanimous eyewitnesses (R. 316, 503, 573, 629 - Lines 10-21[“R.” being in reference to
the Appellate Division Record on Appeal]) . He was doing so in a room where he was supposed
to be doing so, pursuant to the directives and testimony of his employer (R. 630).
The sole safety device available for his use was a pair of stilts (R. 565). There was no
available scaffold (R. 547). He was required to install that insulation in a room within that
structure where there was at least one known and unguarded significant patch of ice on the floor
(R. 580, Line 21, 587, Lines 11-14). No one even alleges that he was ever told to avoid
insulating that room (R. 630, Lines 12-15), just that he was instructed, while working in that
room, not to insulate immediately over the unabated hazardous ice. Such use of stilts is improper
under the Industrial Code provisions authorizing the use of such stilts in New York State because
stilts can only be used in conjunction with readily available scaffolding, and in the absence of
floor level slippery substances.
During the process of that active elevated construction work, the compelled improper
utilization of stilts on a floor not kept free from slippery substances, and the improper placement
of the footings of those stilts on a known and open slippery icy condition, caused the
unintentional movement of the stilts, in kicking out from under this worker (R. 480). This
untoward movement of the stilts caused his unprotected fall across the elevation differential
which had required the use of the stilts in the first place, and prevented this worker from safely
completing his elevated task (R. 480). The fall across that elevation differential resulted in
gravity driven injuries. No safety devices prevented or broke Mr. Nicometi’s fall. Labor Law
§240(1) and 12 NYCRR 23-5.22 were both fully enacted and in force on the date of this incident.
Argument on the Merits
Construction work taking place at the nine or ten foot high ceiling level of a building
being newly constructed activates Labor Law §240(1) Melber v. 6333 Main St., 91 N.Y.2d 759
(1998). A worker elevated above ground level to perform such work, specifically installing
insulation in the rafters of that ceiling, is entitled to have safety devices so constructed, placed,
and operated as to give him proper protection, enabling the safe completion of his work. id. Mr.
Nicometi was, at the time of this incident, protected by Labor Law §240(1), and was entitled to
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APL-2013-00280
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November 6, 2013
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proper protection enabling the safe completion of his elevated task. This is not a question; it is
inescapable.
The sole device that was provided for his use was insufficient, not just because it slipped
out from beneath him causing his fall (Klein v. City of New York, 89 N.Y.2d 833 (1996)), but
also because its use in the circumstances in which it was used was prohibited by law. Stilt use is
only permissible in New York State when utilized in conjunction with readily available
scaffolding. No such scaffolding was present anywhere on this construction site (R.547).
Additionally, stilt use is only permissible in New York State when utilized on floors that are kept
free from slippery substances. The floor here was not kept free from slippery substances; rather,
slippery substances were known to be present prior to the commencement of the work (R.580,
587). These provisions are not suggestions of general best practices, these are the mandatory
specific conduct regulating rules by which any stilt use in New York is authorized. Stilts SHALL
be used only where the floor is kept free from slippery substances 12 NYCRR § 23-5.22(f).
Appropriate scaffolds SHALL be provided at all times and SHALL be readily available to the
workers 12 NYCRR § 23-5.22(c). See also 12 NYCRR § 23-5.22(a&e) [both also violated here].
The provision of only a single safety device, prohibited by the Industrial Code, is not the
provision of proper protection under Labor Law §240(1); such a course, ineluctably, cannot be
the provision of a safety device “so constructed, placed and operated as to give proper protection
to a person so employed.” While the Owner and Contractors are correct in pointing out the
strength of Mr. Nicometi’s case against them under Labor Law §241(6); such a strong case is not
mutually exclusive with a case like this where summary judgment under Labor Law §240(1) was
also correctly granted by the Trial Court. A viable claim pursuant to §241(6) does not exclude
the possibility of a viable claim pursuant to §240(1). For example, had the sole device in this
case been a ladder rather than stilts, and had that ladder kicked out from beneath a worker due to
being placed on an icy footing, a viable claim under §241(6) would be presented by invoking 12
NYCRR 23-1.21 (b) (4) (ii) which mandates that “All ladder footings shall be firm. Slippery
surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings”;
however, in such a case Labor Law §240(1) would also have been violated as demonstrated by
reference to dozens of cases including, again, Klein v. City of New York, 89 N.Y.2d 833 (1996).
The owner and contractors apparently contend that the obviously and inescapably
applicable law was not violated by their provision of only a pair stilts, as buttressed by their
alleged instruction to avoid the hazardous ice known to be on the floor and unabated in the area
where the work was to be performed. This contention is not correct or even supportable under
the controlling law as applied in this circumstance. If a device is insufficient, and situationally
inappropriate, then no safety instruction can cure that defect. The case law on this point as well
is clear beyond any question. It is not enough to send workers on to an insufficiently protected
roof and instruct them not to fall off of its edge. It is insufficient to leave an open and
unguarded hole in the midst of an elevated working surface and instruct workers to work around
it without falling in. It is a violation of Labor Law §240(1) to send a worker on stilts into an icy
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Appellant-Respondent Nicometi
November 6, 2013
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room and tell him insulate the ceiling without stepping on the ice. To hold that owners and
contractors met their obligations under §240(1) in such circumstances would be directly contrary
to the language and intent of Labor Law §240(1) as well as the holdings of the Court of Appeals
in Stolt v. General Foods Corp., 81 N.Y.2d 918 (1993); Hagins v. State of New York, 81 N.Y.2d
921 (1993); and especially Gordon v Eastern Ry. Supply, 82 NY2d 555 (1993). In Gordon the
Court of Appeals wrote that:
Defendants' claim here rests on their contention that plaintiff was repeatedly
instructed to use a scaffold, not a ladder, when sandblasting railroad cars.
We have held, however, that an instruction by an employer or owner to
avoid using unsafe equipment or engaging in unsafe practices is not a
"safety device" in the sense that plaintiff's failure to comply with the
instruction is equivalent to refusing to use available, safe and appropriate
equipment (Stolt v General Foods Corp., supra; see also, Hagins v State of
New York, 81 N.Y.2d 921, 922-923). Evidence of such instructions does
not, by itself, create an issue of fact sufficient to support a recalcitrant
worker defense. (Emphasis Added)
Gordon v Eastern Ry. Supply, 82 NY2d 555, 563 (1993)
The Appellate Division majority’s opinion contradicts the Court of Appeals as quoted and cited
above by finding that the alleged instruction in this case gave rise to a question of fact on sole
proximate causation, despite the fact that the device failed, slipped out from underneath this
worker, collapsed, and fell with him to the ground below preventing his safe completion of the
elevated task that he was actively working on at the time. The Appellate Division majority
found that plaintiff met his initial burden on the motion of establishing entitlement to judgment
as a matter of law.
Inasmuch as the stilts “failed while plaintiff was installing the [insulation
on the ceiling]—work requiring the statute’s special protections” (Melber v
6333 Main St., 91 NY2d 759, 763-764), the court properly concluded that
the statute applies to plaintiff’s section 240 (1) claim.
June 14, 2013 AD Decision, Page Two (emphasis added)
The majority went on to hold however, that the Respondent-Appellants, in response to this prima
facie showing advanced evidence sufficient to raise a question of fact as to sole proximate
causation.
Although plaintiff met his initial burden on the motion (see generally
Alvarez v Prospect Hosp., 68 NY2d 320, 324), defendants raised a triable
issue of fact by introducing evidence that he was directed not to work in
the area where the ice was located.
June 14, 2013 AD Decision, Page Two (emphasis added)
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Appellant-Respondent Nicometi
November 6, 2013
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The sole area subject of the direction relied upon by the Appellate Division majority above
(according to the sworn testimony of the sole witness suggesting that any such direction was
given), was an open, unabated, and unguarded four foot by four foot area of ice covered floor in
the midst of a room where the plaintiff was admittedly supposed to be working. So in other
words, go into that room but do not step into the hazard in its midst. Relying on this alleged
direction, the Appellate Division majority went on to hold that:
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’ ” (Thome v
Benchmark Main Tr. Assoc., LLC, 86 AD3d 938, 940).
June 14, 2013 AD Decision, Page Two (emphasis added)
The sole misuse addressed by the Appellate Division majority in this case was the failure to
insulate the ceiling without standing on the known hazardous and unabated ice. Mr. Nicometi
accidentally falling when he encountered, in the room where he had admittedly been directed to
work, a known, unabated, and unguarded area of ice, upon which he had, allegedly, been told not
to step, is nothing more than comparative negligence, and cannot, as a matter of law, have been
the sole proximate cause of his gravity driven injuries which resulted directly from the
inadequacy of the sole provided safety device. That the misuse alluded to here is the failure to
adhere to the alleged instruction to work around the known hazard, is borne out by the Majority’s
reference, at this point, to another of its decisions finding (errantly according to Justice
Peradotto’s well-reasoned dissent) an alleged safety instruction as evidence raising a material
question. See, Thome v. Benchmark Main Transit Associates, LLC, 86 A.D.3d 938 (4
th
Dept.
2011).
As indicated by the Pre-appeal Statements submitted by the Respondent-Appellants on
this appeal, they still argue that the occurrence of a slip on ice, which precipitates a fall across a
qualifying elevation differential, somehow eviscerates the protective purpose of Labor Law
§240(1). This argument is expressly founded upon their misreading of Melber v. 6333 Main St.,
91 N.Y.2d 759 (1998). Melber simply does not hold, as Respondent-Appellants would urge,
that floor level hazards encountered while actively working on an elevated task, at a physically
significant elevation above the floor, from stilts, cannot result in a finding of violation of Labor
Law § 240(1) and proximately caused injury. Such an argument misapprehends the nature of
Labor Law §240 which is implicated, not by the ice in this case, but by the necessity of a safety
device to enable safe access to rafters above an icy floor in this newly constructed building.
Liability under Labor Law § 240 (1) depends on whether the injured
worker's "task creates an elevation-related risk of the kind that the safety
devices listed in section 240 (1) protect against" (Broggy v Rockefeller
Group, Inc., 8 NY3d 675, 681 [2007])
Salazar v Novalex Contr. Corp., 18 N.Y.3d 134 (2011) (emphasis added)
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Appellant-Respondent Nicometi
November 6, 2013
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Defendants argue that the volumes of case law involving ground level hazards precipitating
movement and the failure of other safety devices (ladders and scaffolding) is somehow
inapposite because stilts are useful only because of the significantly increased mobility of
workers utilizing them. It is of course true that there is a convenience gain associated with the
mobility of stilts; however, it is also true that the mobility is gained at the expense of stability.
Stilts are inherently less stable and therefore more hazardous in crossing elevation differentials
than their more surefooted equivalents of ladders and scaffolding. It is because of this increased
hazardous instability that the Industrial Code mandates that stilt use must be voluntary, closely
limited in scope, must be pursued only on floor surfaces appropriate to it, and must be
accompanied by readily available scaffolding for the use, at will, of any worker using the stilts.
Because they are more dangerous, the code mandates a much more restrictive set of
circumstances within which their use is permissible. Stilt use requires more protections than the
use of ladders, so it cannot be that the exactly parallel provisions of the Industrial Code
regulating the placement of ladder footings, and the exactly parallel case law finding prima facie
violation in the movement of ladders caused by improper placement on ground level slippery
surfaces are inapplicable to stilts. Because they are less stable and more dangerous they should
be entitled to less protection… this does not seem likely to be what the Court of Appeals was
thinking in deciding Melber. The following portion of the decision itself makes this clear.
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 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…(emphasis added)
Melber v. 6333 Main Street, Inc., 91 N.Y.2d 759 (1998)
It also demonstrates that among the factors important for determining whether the failure of stilts
to protect a worker results in a finding of §240 violation as a matter of law are:
Did the stilts perform the function required of them by §240 by allowing the worker to
safely complete his work at an elevation? (No. Injury here during active elevated work.);
Was the work such that the special protections were required? (Yes. As a matter of
law.);
Was the hazard precipitating the fall wholly unrelated to the elevation differential? (No.
The icy floor was the actual lower end of the very elevation differential invoking the
statute and requiring a safety device in the first place.)
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Appellant-Respondent Nicometi
November 6, 2013
-Page Eight-
Did the hazardous icy floor interfere with or increase the danger of injury in the
performance of the elevation-related task? (Yes. Obviously working, standing, and
walking on stilts on ice is more difficult and dangerous than doing so from a proper floor
surface as required by 12 NYCRR 23-5.22 (f)).
The Fourth department dissent in Melber, suggested that "…the Legislature did not contemplate
that an accident occurring at ground level while one is walking, albeit elevated on stilts, should
give rise to absolute liability under Labor Law § 240(1)." While the Court of Appeals did quote
this passage, it directly held that working from stilts in the rafters of a building under
construction did invoke the statute’s special protection. That settled the question. The special
protections apply and Mr. Nicometi was not walking away from the situs of his elevated task as
was Mr. Melber. He was actively engaged in it. The statute does apply, and as the Appellate
Division has held, in the only prior appellate decision directly addressing the “different case”
alluded to by the Melber Court, that working on an elevated task while elevated on stilts that fail
to protect a worker from falling across an elevation differential, for whatever reason, shows a
prima facie violation of the statute.
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.
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
statute's special protections-a different case would be presented” (at
763-764, 676 N.Y.S.2d 104, 698 N.E.2d 933; see also, Klein v. City of New
York, 89 N.Y.2d 833, 652 N.Y.S.2d 723, 675 N.E.2d 458).
Matos v. Garden State Brick, 272 A.D.2d 70 (1
st
Dept. 2000)
Like Matos, the Appellant-Respondent Nicometi found himself in that different case where the
safety device did fail while he was using it to actively perform construction work at a height
from, the apex of the very elevation differential requiring the use of the stilts in the first place.
Labor Law §240(1) cannot possibly be liberally interpreted for the protection of workers by
excluding from its sphere, a 21 year old worker whose injuries, including major spinal surgery,
resulted from the failure of a scaffold equivalent safety device improperly utilized in violation of
multiple applicable industrial code provisions regulating its use, solely because the unprotected
fall was precipitated by ice, the presence of which was also in violation of the Industrial Code.
The use of the only safety device provided was specifically precluded by the Industrial Code in
these circumstances. The stilts on ice were not proper protection. The owner and contractors
failed to provide proper protection as defined by 12 NYCRR § 23-1.4(a) and required by Labor
Law §240(1). As a result Mr. Nicometi fell across the activating elevation differential suffering
serious injuries, requiring major spinal surgery, driven by gravity acting directly upon his person.
Respectfully, he is entitled to judgment in his favor on liability under Labor Law §240(1).
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Appellant-Respondent Nicometi
November 6, 2013
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Response to Opposing Arguments
There are, again, really only two arguments advanced by the Respondent-Appellants.
First they claim that ice at ground level, or at the level where a worker is walking, cannot cause a
fall for which Labor Law §240(1) provides redress. The contention is simply incorrect. The
Court of Appeals has repeatedly held that slippery conditions that precipitate falls across
elevation differentials are prima facie violations of Labor Law § 240(1).
In Striegel v Hillcrest Hgts. Dev. Corp., 100 N.Y.2d 974 (2003) the Court of Appeals
affirmed the Fourth Department’s upholding of summary judgment in a plaintiff’s favor where
that worker slipped while walking on frost and then slid across an unprotected elevation
differential. According to the summary of his testimony recounted by the Court of Appeals, “As
plaintiff was walking…, his left foot slipped on the side of the roof covered with frost.” Because
of slipping on frost, a slippery substance very much like ice, Mr. Striegel was propelled across
an elevation differential suffering a gravity driven injury. If as Respondent-Appellants all
suggest “Labor Law § 240(1) does not extend to protecting workers against the hazard of
slipping on ice,” the direct cause of Striegel’s accident, then Striegel should not have prevailed in
the Court of Appeals.
In Klein v. City of New York, 89 N.Y.2d 833 (1996) the Court of Appeals wrote that
“Plaintiff has established a prima facie case that defendant violated Labor Law § 240(1) by
failing to ensure the proper placement of the ladder due to the [slippery] condition of the
floor…” Klein v. City of New York, 89 N.Y.2d 833 (1996). In so holding, the Court of Appeals
cited to the Fourth Department decision of Ferra v. County of Wayne, 147 A.D.2d 964 (1989). In
Ferra, the Court reversed a lower court’s failure to grant summary judgment in the plaintiff’s
favor, where the condition of the floor upon which an enumerated device was placed caused the
worker to fall. Ferra v. County of Wayne, 147 A.D.2d 964 (1989) [“The ladder had been placed
by plaintiff on an uneven floor of rough graded dirt, partially covered with plywood”]. The
Fourth Department again found slippery conditions which precipitated a fall to be prima facie
evidence of violation and proper support for the grant of summary judgment to the plaintiff
where the worker “…slipped and fell off the roof…” Mergenhagen v Dish Network Serv.
L.L.C., 64 AD3d 1170 (4
th
Dept. 2009). Slipping was not merely verbiage in Mergenhagen
because the Court also reversed the lower court’s grant of summary judgment dismissing a Labor
Law §241(6) claim to the extent that it was premised upon violation of 12 NYCRR 23-1.7(d).
Yet another worker who slipped and was granted dispositive pretrial relief on Labor Law
§240(1) liability is described in the Fourth Department decision of Smith v. Fayetteville-Manlius
Cent. School Dist., 32 A.D.3d 1253 (4
th
Dept. 2006). In Smith, the Appellate Division held that
summary judgment on the issue of Labor Law 240(1) was properly granted in plaintiff’s favor in
circumstances where “plaintiff submitted proof that his feet slipped off the ladder because of the
possible slippery condition of the ladder.”
Nicometi v. Vineyards of Fredonia
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Letter Brief for the Appellant-Respondent Nicometi
November 6, 2013
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As Justice Drury correctly pointed out at the Trial Court below (R. 19), it is beyond cavil
that the Labor Law’s § 240(1) does extend its protection where ice (or some other slippery
substance) is a precipitating factor in an injurious fall across a construction site elevation
differential. Klein v. City of New York, 89 N.Y.2d 833 (1996); Jiminez v. Nidus Corp., 288
A.D.2d 123, (1
st
Dept. 2001); and Alligood v. Hospitality West, LLC, 8 A.D.3d 1102 (4
th
Dept.
2004).
The second of the two arguments advanced by the Respondent-Appellants is that even if
§240(1) does apply generally (which it does), summary judgment in plaintiff’s favor should be
precluded by the allegation that he was warned that while in the room where he fell, he should
not step on the open, unabated, and unguarded ice known to be on the floor therein. As
addressed above, the nature of the alleged warning is such that it cannot raise any question
material to the determination of liability under Labor Law §240(1). Such a warning is not
evidence that can support a recalcitrant worker defense; and it is further insufficient to suggest
that the plaintiff might have been the sole proximate cause of his own injury. Choosing to send
workers into a room with ice on the floor, and telling them to work from stilts looking up at the
ceiling into which they were installing insulation, but not to step on the ice known to be located
on the floor, is obviously and ludicrously short of a scenario in which the plaintiff can be found
to have been the sole cause of his own injury. See Blake v. Neighborhood Hous. Servs. of N.Y.
City, 1 N.Y.3d 280 [where there is a statutory violation “plaintiff cannot be solely to blame].
Respondent-Appellants assert the presence of a question of fact as to whether the
violation of Labor Law §240(1) was a proximate cause of these gravity driven injuries relying on
the self-serving statement of Mr. Hilliker made for the first time at his deposition five years after
the accident, that, allegedly, he told all three installers not to insulate over the ice:
16 Q. Did you see that ice before or after he fell?
17 A. Before.
18 Q. Did you say anything to anybody about that ice?
19 A. Yes.
20 Q. Who did you say something about that ice to?
21 A. All three installers.
22 Q. What did you say to them about that ice?
23 A. I told them do not insulate that area.
R. 589, Hilliker EBT Page 61
Interestingly all three installers testify that Mr. Hilliker never said any such thing. All three of
them: Russell Ellsworth, Collin Gzreskowiak, and Marc Nicometi.
16 Q. Did anyone at that job site, on the day of the
17 accident, talk to you about any ice that was on
18 that concrete?
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Letter Brief for the Appellant-Respondent Nicometi
November 6, 2013
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19 A. No.
20 Q. Did Ray ever talk to you about any ice on the
21 concrete?
22 A. No.
R. 690, Ellsworth EBT, Page 44
18 Q. But you did testify that at no point that day did
19 Mr. Hilliker, as far as you recall, come to you
20 and tell you not to work in that area?
21 A. Right.
R. 727, Ellsworth EBT, Page 81
16 Q. On the date this accident happened, but before
17 Marc fell, did anyone, including Ray Hilliker or
18 Russell or anybody else, tell you not to work in
19 the area where there was ice on the floor?
20 A. No.
R. 525, Gzreskowiak EBT, Page 91
Note that contrary to the characterization of Respondent-Appellant Western NY Plumbing
in it’s A.D. brief (Page 9, first partial paragraph), Mr. Gzreskowiak does not testify that he
does not recall such a warning; but rather, that no such warning was issued. Also please
note that contrary to the contention in that brief (Page 19, first full paragraph, second
sentence), Mr. Nicometi does not “essentially” or in any other respect, admit that Mr.
Hilliker “warned him against working on ice.” Quite the contrary:
12. I complained about the presence of the ice prior to my fall. My foreman
got the general contractor to come and see the ice but was instructed to
finish the work irrespective of this condition.
R. 835, Nicometi Affidavit ¶ 12
R. 162, Nicometi EBT, Page 108
Given that Mr. Hilliker alone suggests any warning, and given that all three of the individuals he
claims to have warned separately testified that he did not warn them at all, his self-serving
statement is insufficient to raise a question of fact.
Nicometi v. Vineyards of Fredonia
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Letter Brief for the Appellant-Respondent Nicometi
November 6, 2013
-Page Twelve-
However, even if it were sufficient to raise a question of fact as to whether Mr. Hilliker
instructed the workers to avoid the ice, such a question is not material to the determination of
liability. Mr. Hilliker admittedly knew there was ice in that room; he nonetheless admittedly
directed the workers to insulate that room using stilts in the presence of that ice and with no
readily available scaffolding. Labor Law § 240(1) requires more than the paying of lip service to
ensure safety. Giving a safety instruction and not placing and operating proper safety devices
properly, results in a violation. The Courts have long held so. The Fourth Department in Ewing
v. ADF Const. Corp., 16 A.D.3d 1085 (4
th
Dept. 2005) did so:
Contrary to defendant's contention, the nondelegable duty under section
240(1) “ ‘is not met merely by providing safety instructions or by
making other safety devices available, but by furnishing, placing and
operating such devices so as to give [plaintiff] proper protection’ ”
Ewing v. ADF Const. Corp., 16 A.D.3d 1085 (4
th
Dept. 2005).
The 4
th
Department in Haystrand v. County of Ontario, 207 A.D.2d 978 (4
th
Dept. 1994) also
did so:
Under Labor Law § 240 (1), "[a]n owner's statutory duty is not met merely
by providing safety instructions or by making other safety devices
available, but by furnishing, placing and operating such devices so as to
give proper protection" (Gordon v Eastern Ry. Supply, 181 A.D.2d 990,
991, affd 82 N.Y.2d 555)
Haystrand v. County of Ontario, 207 A.D.2d 978 (4
th
Dept. 1994)
The 4
th
Department in Long v. Cellino & Barnes, P.C., 68 A.D.3d 1706 (4
th
Dept. 2009) also
did so:
Contrary to defendants' contention, the nondelegable duty imposed upon
the owner and general contractor under section 240(1) “ ‘is not met merely
by providing safety instructions or by making other safety devices
available, but by furnishing, placing and operating such devices so as to
give [a worker] proper protection’ ”
Long v. Cellino & Barnes, P.C., 68 A.D.3d 1706 (4
th
Dept. 2009)
The 4
th
Department in Aton v. Syracuse University, 24 A.D.3d 1315(4
th
Dept. 2005) also did so:
Contrary to the contention of defendants, they failed to raise an issue of fact
whether plaintiff's actions were the sole proximate cause of the accident.
According to defendants, plaintiff was instructed to wait until the bolts
were tightened before climbing the tower and the accident occurred because
he failed to do so. The record establishes, however, that the accident
occurred after plaintiff had been informed that he could climb the tower. In
any event, where there is a statutory violation that is a proximate cause
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Appellant-Respondent Nicometi
November 6, 2013
-Page Thirteen-
of the injuries, “plaintiff cannot be solely to blame for [the injuries]”
(Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 290, 771
N.Y.S.2d 484, 803 N.E.2d 757).
Aton v. Syracuse University, 24 A.D.3d 1315(4
th
Dept. 2005)
The Court of Appeals has also long held that a mere instruction is not a safety device. In Gordon
v. Eastern Ry. Supply, Inc., 82 N.Y.2d 555 (1993) the Court wrote that:
…an instruction by an employer or owner to avoid using unsafe
equipment or engaging in unsafe practices is not a “safety device” …
Gordon v. Eastern Ry. Supply, Inc., 82 N.Y.2d 555 (1993)
A mere instruction does not satisfy the requirements of Labor Law §240(1).
Defendant-appellant cites to the recent Fourth Department decision of Thome v.
Benchmark Main Transit Associates, LLC, 86 A.D.3d 938 (4
th
Dept. 2011) for the proposition
that a safety instruction can result in a finding that a plaintiff was the sole proximate cause of his
own injury. The decision in Thome is inapposite. In Thome, the plaintiff was injured when
working in a defined section of the construction site away from the area where he was supposed
to be working, and where he was told not to be working that day, as opposed to Mr. Nicometi
who was injured when he stepped onto a small patch of ice in the middle of a room that he was
supposed to be insulating that day. Thome’s foreman testified that:
the morning of the accident, he told plaintiff “to work in the center of the
building” and away from the holes, which were located on the “sides” of the
building. According to the foreman, plaintiff's accident occurred outside the
area that the foreman defined as the “center” of the building...
Thome v. Benchmark Main Transit Associates, LLC, 86 A.D.3d
938 (4
th
Dept. 2011)
The section of the construction site wherein Thome was injured had been being prepared for
other construction work and was not safe for Thome’s work due to those preparations (many
large necessary holes intentionally cut into the floor). Mr. Nicometi was supposed to be in the
very room wherein he was injured, the ice that caused his fall was not supposed to be there, but
was known to be there just the same. No liberal construction of the Labor Law §240(1) can
permit an owner or contractor to satisfy his nondelegable duties under the law by simply saying
“watch out for hazards, be careful, try not to slip or trip or fall.” If they could, the Labor Law
would be useless, and certainly would not place the ultimate responsibility for worksite safety on
the owner and contractors instead of the workers themselves. Can workers on a roof be denied
the protection of §240 because the contractor told them not to fall off of the edge but failed to
otherwise protect them from falling? Of course not. Does the fact that the NYCRR mandates
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Appellant-Respondent Nicometi
November 6, 2013
-Page Fourteen-
railings, safety nets, life lines et c., mean that a worker who falls off the unprotected edge of an
elevation differential must seek redress solely through Labor Law §241(6)? Certainly not.
Appellant-Respondent Nicometi was instructed, with at least one of his coworkers to
insulate the very apartment room in which the ice was known to be located. Inadvertently
stepping onto a hazard in the midst of an area where he was directed to work, and indeed
immediately adjacent to it, cannot be the sole proximate cause of the fall and injuries even if we
were to credit, for the purposes of this appeal, the universally contradicted self-serving statement
of Mr. Hilliker at his EBT five years after the incident in question. At the very most, such a
misstep could constitute contributory negligence which is not relevant to a Labor Law §240(1)
cause of action. (Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 521 (1985);
Stolt v. General Foods Corp., 81 N.Y.2d 918, 920; see Cahill v. Triborough Bridge & Tunnel
Auth., 4 NY3d 35, 39; Ferris v. Benbow Chem. Packaging, Inc., 74 AD3d 1831) Providing
instructions amounting to a directive to “insulate that room using these stilts but avoid the four
foot square section of ice on the floor in the middle of it” does not satisfy the nondelegable duty
to provide proper protection by the placement and operation of safety devices. The dissent by
Hon. Erin M. Peradotto in Thome summarizes these truths about the Labor Law succinctly:
defendants' “nondelegable duty under [Labor Law § ] 240(1) is not met
merely by providing safety instructions ․, but by furnishing, placing
and operating [safety] devices so as to give [plaintiff] proper protection”
(Ewing v. ADF Constr. Corp., 16 AD3d 1085, 1086 [internal quotation
marks omitted] [emphasis added]…Thus, inasmuch as plaintiff
established that the accident was caused, at least in part, by a statutory
violation, his actions cannot be the sole proximate cause of his injuries
(see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280,
290; Whiting v. Dave Hennig, Inc., 28 AD3d 1105, 1106).
Thome v. Benchmark Main Transit Associates, LLC, 86 A.D.3d
938 (4
th
Dept. 2011)
Again it is important to keep the nature of the alleged warning in mind. Mr. Hilliker testified, at
the same deposition where he first asserted that he had warned the workers about the ice, that
Mr. Nicometi was supposed to insulate that very room, just not to insulate the small area of
ceiling located over the patch of ice in the middle of it:
12 Q. So I mean but that room was part of the room that
13 he had to do. He just had to know to avoid that
14 spot where the ice was?
15 A. Correct.
R. 630, Lines 12-15
Go into that room with ice on the floor, use stilts to elevate yourself so that you can reach the
ceiling, while looking at the ceiling, walk around the room on those stilts to insulate the ceiling,
but do not do so over the spot where the ice is located, and by the way, there is none of the
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Appellant-Respondent Nicometi
November 6, 2013
-Page Fifteen-
NYCRR required scaffolding even present, let alone readily available for your use in insulating
that icy spot, or the areas immediately adjacent to it that you still do have to insulate. Such a
warning, even in the unlikely event that it was actually given, falls woefully short of raising even
a question about sole proximate causation on the part of a worker whose injuries flow from the
use of a safety device that the Industrial Code prohibits using in the circumstances with which he
was presented. Stilts just cannot ever be “proper protection” in the presence of ice on the floors
where they are in use, and no mere instruction cures that deficiency. Miles v Great Lakes Cheese
of N.Y., Inc., 103 AD3d 1165 (4
th
Dept. 2013).
Aside from the two primary points of contention advanced by the Respondent-
Appellants, there are a number of ancillary arguments that should be briefly addressed. First
among these is the assertion that the use of the mandated scaffolding at this job site would have
been more dangerous than the use of stilts because the plaintiff would have to move the scaffold
from place to place, and while doing so, from ground level, might encounter a slipping hazard.
Asserting that the provision of the scaffolding as mandated by the NYCRR for all stilt use, on all
construction sites, in the entire state of New York, which would have had the highest probability
(outside of actually removing the ice) of preventing the plaintiff from falling while working at
an elevation would somehow increase the danger of his work seems to be a bit of a stretch. So
too does the argument that had such a scaffold been provided as the law required, the plaintiff
might still have encountered this dangerous icy condition at ground level while moving the
scaffold and been injured in any event. As the Respondent-Appellants well know, a fall from an
elevation of only a few feet (say from the top of a pair of three to five foot stilts) activates the
statute, whereas a slip and fall actually occurring at ground level does not. These assertions by
the VINEYARDS (Paragraph 17 of its affidavit on the motion for leave to appeal) that the injury
might have also hypothetically or even possibly occurred at a ground level icy workstation are
simply meaningless in the evaluation of a Labor Law §240(1) claim arising from a worker’s fall
from an elevated workstation to the ground below. If the worker were not elevated, in contrast to
Mr. Nicometi who was elevated at the time that his stilts slipped out from beneath him, then
Labor Law §240(1) would not be directly implicated by his slipping and falling.
Conclusion
No allegations of material questions of fact have been offered by the Respondent-
Appellants. The remainder of their opposition raises questions that at least one of the
Respondent-Appellants concedes to be irrelevant to a §240(1) evaluation (R. 859, Leary
Affirmation ¶ 88 “benign”). Who drove whom, and where to, and what happened after the
injury, and what type of insulation was being used, all have absolutely no bearing on this matter.
The material facts are beyond dispute, despite the five year detail muddying time gap between
the incident and the depositions.
Plaintiff was performing qualifying work at an elevation at the
time of his fall installing insulation into the ceiling at a new
construction project.
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for the Appellant-Respondent Nicometi
November 6, 2013
-Page Sixteen-
Plaintiff was instructed to work in the very room where the fall
and injuries occurred.
The floor in that room was known in advance to have had at least
one ice covered section, sized at approximately 16 square feet (4’
by 4’ according to Mr. Hilliker).
The sole safety device provided was a pair of stilts.
The stilts failed in the course of the actual construction work for
which they were required and provided in the first place.
They failed by slipping and kicking out from underneath the plaintiff
while he was working at an elevation above a known slippery (icy) surface.
As a result of this untoward motion of the sole safety device, the
plaintiff fell across a qualifying elevation differential and was injured
by the work of gravity.
These facts, which are not legitimately in dispute, resolve the issue as a matter of law. The
Appellant-Respondent Nicometi, and not the owner and contractors, was entitled to judgment in
his favor on the Labor Law §240(1) cause of action.
The Appellant-Respondent, Marc Nicometi, therefore requests, for the reasons above, for
the reasons set forth in the briefs submitted to the Appellate Division, and for such other reasons
as may appear to the Court, that the Appellate Division majority be reversed to the extent that it
reversed the Trial Court’s grant of Summary Judgment in Mr. Nicometi’s favor, and further that
the Trial Court’s determination be reinstated.
Dated: Williamsville, New York
November 6, 2013
Respectfully submitted,
THE BALLOW LAW FIRM, P.C.
By: ______________________
John E. Ballow
By: ______________________
Jason A. Richman (Of Counsel)
Attorneys for the Appellant-Respondent
8226 Main Street
Williamsville, New York 14221
Telephone: (716) 634-0500