1111 KenneySheltonLiptakNowakup Attorneys
November 25, 2013
VIA FEDERAL EXPRESS STANDARD OVERNIGHT
BUFFALO
The Calumet Building
233 Franklin Street
Buffalo NY 14202
p 716.853.3801
f 716.853.0265
kSInlaW.COM
Clerk of the Court
New York State Court of Appeals
Court of Appeals Hall
20 Eagle Street
Albany, New York 12207
RE: Letter Brief for the Respondent-Appellant Winter-Pfohl
I\ icometi v. Vineyards of Fredonia
APL-2013-00280
Dear Justices of the Court:
This letter is submitted on behalf of Defendant-Respondent-Appellant
Winter-Pfohl, inc. ("Winter-Pfohl") pursuant to 22 NYCRR §500.11(d), and sets
forth our arguments in support of its position on the merits. Winter-Pfohl was
dissolved by proclamation or annulment of authority by proclamation and, in
compliance with 22 NYCRR §500.1(f), hereby states that no parents, subsidiaries
and affiliates exist.
PRELIMINARY STATEMENT
Plaintiff-Appellant-Respondent Marc A. Nicometi ("plaintiff' or
"Nicometi") commenced this Labor Law and common-law negligence action
seeking damages for injuries he allegedly sustained while working on stilts.
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BUFFALO I CORNING I ERIE I NEW YORK I ROCHESTER I SYRACUSE
Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for Respondent Winter-Pfohl, Inc.
November 25, 2013
Plaintiff claims that he was installing insulation between the ceiling joists of
an apartment under construction when he slipped on a patch of ice on the floor.
The seminal and decisive question on this appeal is whether an accident occurring
at ground level while one is walking, albeit elevated on stilts, gives rise to absolute
liability under Labor Law §240(1).
This Court has determined that the extraordinary protections of this statute
apply only to a narrow class of dangers — a determination critical to the resolution
of this appeal. It is difficult to imagine how plaintiffs proximity to ice on a
ground level floor could have entailed an elevation-related risk which called for
any of the protective devices of the types listed in §240(1). Ice on a ground level
floor is not a peril targeted by Labor Law §240(1) and, as a practical matter, one
does not erect scaffolding over a floor, or use any of the other devices of the sort
listed in that statute, to avoid such a hazard.
The ice on the floor is not a risk that could have been avoided by proper
placement or utilization of one of the devices listed in Labor Law §240(1). The
protective equipment described in that statute is not designed to avert the hazard
plaintiff encountered here. The proper erection, construction, placement or
operation of one or more of the devices of the sort listed in §240(1) would not have
prevented plaintiffs injuries.
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Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for Respondent 1/1/ nter-Pfohl, Inc.
November 25, 2013
Certainly, there are other statutes as well as rules and regulations, to protect
the worker from the hazard of ice on a floor, but Labor Law §240(1) and its
extraordinary protections is not one of them. In the circumstances presented,
plaintiff did not encounter a hazard contemplated by the statute, and his accident
fell outside the scope of Labor Law §240(1).
POINT I
PLAINTIFF'S ACCIDENT FALLS OUTSIDE THE SCOPE OF
LABOR LAW §240(1) BECAUSE THE ACCIDENT WAS NOT
THE RESULT OF AN ELEVATION-RELATED RISK BUT,
RATHER, IT WAS THE RESULT OF A SEPARATE AND
UNRELATED HAZARD, NAMELY, ICE ON THE FLOOR.
Plaintiff, a laborer, wore stilts as he installed insulation between the ceiling
joists of a newly constructed apartment building, and claims that ice on the floor
caused him to fall. He testified that he slipped as he stepped forward onto the ice
and denied that the stilts themselves malfunctioned. Thus, there is no claim that
plaintiff's accident resulted from any deficiency in the stilts rather than the ice on
the floor. Hence, it is undisputed that the hazard which caused the accident was
wholly unrelated to the hazards contemplated by Labor Law §240(1).
In Melber v. 6333 Main St., Inc., 91 NY2d 759 (1998), this Court held that a
carpenter who was injured when he walked down a corridor wearing 42-inch stilts
that he had been using to install metal studs in the top of a drywall and who tripped
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Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for Respondent Winter-Pfehl, Inc.
November 25 2013
over an electrical conduit protruding from an unfinished floor had no cause of
action under Labor Law §240. This Court reasoned that the carpenter's injury
resulted from the conduit on the floor, not from a failure of the stilts, and that
therefore the injury did not result from an elevation-related risk. Agreeing with the
dissenting Justices in the intermediate appellate court, who "concluded '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);" this Court held that the "plaintiff s accident fell outside the
scope of Labor Law §240(1)." Id. at 761-762.
The Melber Court did not impose liability for a fall from stilts, but instead
dismissed the cause of action under section 240(1), reasoning that:
[c]onsistent with Rocovich and Ross, we have confined
liability under the statute to failure to protect against
elevation-related risks. [Citations omitted] ... 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 statute is simply not
designed to avert the hazard plaintiff encountered here.
Melber, 91 NY2d at 763. Likewise, the risk of slipping on ice at ground
level, while working on stilts, is not a risk that can be avoided by proper placement
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Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for Respondent W nter-Pfohl, Inc.
November 25, 2013
or utilization of one of the devices listed in Labor Law § 240(1). The protective
equipment envisioned by the statute is simply not designed to avert the hazard
plaintiff encountered here — slipping and falling on ice.
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". Id. at 763-764,
However, the distinction to be made is not whether plaintiff was injured while he
was actually laboring at an elevation when he slipped, but whether the injury
resulted from a hazard that is contemplated by the statute, because the Court
further stated:
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,
"plaintiffs 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.
[emphasis added].
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Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for Respondent Winter-Pfohl, Inc.
November 25, 2013
Melber, 91 NY2d at 763-764. In this instance, the ice on the floor did not interfere
with or increase the danger of injury any more or any less than the conduit did in
Melber.
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, plaintiff claims 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 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
indistinguishable from the instant case, except that in both of those cases the
plaintiff, while working on stilts, tripped over an electrical cord, rather than
slipped on ice. The Russell decision reads in full:
Supreme Court properly granted that part of third-party
defendant's cross motion seeking summary judgment
dismissing the Labor Law §240(1) claim. Plaintiff Dean
Russell, a subcontractor, tripped over an electrical cord
while working on stilts and, in doing so, "did not
encounter a hazard contemplated by the statute" (Melber
v. 6333 Main St., 91 NY2d 759, 761) [emphasis added].
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Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for Respondent Winter-Pfohl, Inc.
November 25, 2013
Similarly, McNabb, in which Ipilaintiff was working on stilts when he
tripped over an electrical cord, causing him to fall and sustain injuries" (Id. at
1238) [emphasis added]), 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
[20017).
Id. at 1239.
The same reasoning was also used to dismiss plaintiff's Labor Law §240(1)
claim in two more recent lower court decisions. See Garcia v. Mt. Airy Estates,
Inc., 35 Misc. 3d 1208A (Sup. Ct. Richmond Co. 2012); Gonzalez v. Majestic Fine
Custom Home, 2012 NY Slip Op 31466U (Sup. Ct. Queens Co.).
Here, plaintiff's injury resulted from an ordinary hazard — ice — that was
unrelated to the danger that brought about the need for the stilts in the first place
(R.851). Plaintiff needed to use stilts because of the elevation differential between
the floor and the ceiling, where his work was located (R.851). This elevation
created the risk that gravity alone, working directly on plaintiff, might cause him to
fall unless he was protected by some device. The stilts were the device that
enabled him to perform that work without falling until he stepped onto a patch of
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Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for Respondent Winter-Pfohl, Inc.
November 25, 2013
ice at ground level (R.851). Plaintiff's testimony, confirmed by the testimony of
those who witnessed the accident, makes clear that he fell NOT because of any
problem with the stilts, but because of the ice (R.852). He had no problem using
the stilts until he reached the ice and has never alleged that the stilts were defective
or malfunctioned in any way (R.852). It was the ice on the floor that caused his
accident, not the stilts or the absence of any other device of the sort enumerated in
Labor Law §240(1).
A. PLAINTIFF'S REPEATED REFERENCES TO ALLEGED
VIOLATIONS OF THE INDUSTRIAL CODE ARE
MISPLACED BECAUSE THEY WERE NEITHER RAISED IN
PLAINTIFF'S ORIGINAL MOTION PAPERS, NOR ARE
THEY DETERMINATIVE OF THE ISSUE OF LIABILITY
UNDER LABOR LAW §240(1).
First of all, there is no law prohibiting the use of stilts under the
circumstances of this case, as argued by plaintiff in the letter brief of counsel (p.
4). There are rules regulating their use relevant to the issue of liability under Labor
Law §241(6), which is not an issue before this Court, nor was it an issue properly
raised in either of the courts below. Plaintiff commented on the propriety of using
stilts on a slippery floor and without readily available scaffolding for the first time
in a reply affirmation (R. 874-875) in an effort to bootstrap his argument for
liability under Labor Law §240(1) by citing rules germane only to the issue of
liability under Labor Law §241(6).
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Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for Respondent Winter-Pfohf, Inc.
November 25, 2013
Had the relevancy of those rules been timely raised in the first instance,
Winter-Pfohl would have argued that the prohibitive use of stilts on a floor that
was not free of a slippery substance is further evidence of plaintiffs misuse of the
stilts in an area that he was told by his supervisor not to insulate, less than fifteen
minutes before plaintiff entered that area and fell, because it would be unsafe to
walk with stilts on ice (R. 585-586; 589-590).
Winter-Pfoh.l would have also argued that the absence of readily available
scaffolds for any person who may elect to use such scaffold in lieu of stilts was not
a proximate cause of plaintiffs accident because plaintiff, himself, testified that
stilts were the proper device for this job, and that he had all the tools and devices
that he needed for his job (R. 182-183). He also testified that he had never used a
ladder for installing insulation, and had rarely used a scaffold (R. 125). He had
only used a scaffold once, in a very large church and, even then, he also used stilts
(R. 287-288). Thus, he would not likely have used a scaffold even if one had been
readily available.
Furthermore, even if the relevancy of the Industrial Code rules had been
timely raised, Labor Law §240(1) does not require that a worker be furnished with
redundant devices. Stilts are just another variation of a scaffold and both serve the
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Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for Respondent Winter-Pfohl,
November 25, 2013
same purpose, only stilts provide for greater mobility and more efficiency in
certain circumstances such as those in this case.
B. PLAINTIFF'S ARGUMENT THAT THE IMPROPER
PLACEMENT OF THE FOOTINGS OF THE STILTS WAS A
VIOLATION OF LABOR LAW §240(1) IS ILLOGICAL
BECAUSE IT IGNORES THE INHERENT DIFFERENCE
BETWEEN A LADDER AND STILTS.
The cases cited by plaintiff in support of his argument that the improper
placement of the stilts was a violation of Labor Law §240(1) all involve ladders
that slipped out from under the injured worker because of their improper placement
on an uneven or slippery surface and ignore the inherent difference between a
ladder and stilts. A ladder is meant to be immobile once it is positioned for
elevated work, whereas the very reason for using stilts is to provide greater
efficiency by allowing a worker to move along with the work, and it would make
no sense for another person to walk along side a worker on stilts, telling him where
to place each step he takes.
This Court has recognized that common sense and logic must be considered
in certain circumstances. See Wilinski v. 334 East 92nd Housing Devel. Fund
Corp., 18 NY3d 1, 11 (2011) (the Court would not impose liability "for failure to
provide protective devices to prevent the walls or objects from falling, when their
fall was the goal of the work" because that "would be illogical").
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Nicometi v. Vineyards of Fredonia
AFL-2013-00280
Letter Brief for Respondent Winter-Pfchl, Inc,
November 25, 2013
POINT H
IF SUPREME COURT PROPERLY CONCLUDED THAT
PLAINTIFF'S FALL WAS THE RESULT OF AN ELEVATION-
RELATED RISK FOR WHICH LABOR LAW §240(1)
PROVIDES PROTECTION, THEN THERE IS STILL A
TRIABLE ISSUE OF FACT WHETHER PLAINTIFF WAS A
RECALCITRANT WORKER, OR WHETHER HIS ACTIONS
WERE THE SOLE PROXIMATE CAUSE OF HIS INJURIES.
A finding that plaintiff's fall was the result of an elevation-related risk for
which Labor Law §240{1) provides protection does not, by itself, impose liability
on the defendants.
A. WHETHER THERE WAS A VIOLATION OF LABOR LAW
§240(1) IS A TRIABLE ISSUE OF FACT BECAUSE THE
STILTS PLAINTIFF WAS USING WERE NOT DEFECTIVE,
NOR DID THEY FAIL.
There is no liability under Labor Law § 240(1) unless the injured plaintiff
shows that defendant violated section 240{1) and that the violation was the
proximate cause of plaintiffs injury. Blake v. Neighborhood Housing Services of
New York City, Inc., I NY3d 280, 289 (2003). The statute is violated where a
contractor, owner or agent thereof does not provide "proper protection" to a worker
and that failure proximately causes the worker's injury. Id.
A defendant makes a prima facie showing that there was no violation of this
statutory protection where there is no evidence that the safety device
malfunctioned or was not adequate for the task at hand. Weinberg v. Alpine
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N icometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for Respondent Winter-Pfohl, Inc.
November 25, 2013
Improvements LLC, 48 AD3d 915, 917 (3d Dept. 2008) (plaintiff had a cheese-like
substance on his boots when he slipped and fell off a ladder, and conceded that the
ladder itself did not fail, and the court ruled that he could not maintain a 240[1]
claim).
Where the safety device provided to the worker was not defective, there is
an issue of fact whether it failed to provide him with proper protection. Arigo v.
Spencer, 39 AD3d 1143, 1144-45 (4th Dept. 2007) (grant of summary judgment to
plaintiff reversed where it was undisputed that the ladder was not defective,
however there was an issue of fact whether the ladder "kicked out" and thus failed
to provide plaintiff with proper protection); see also Taglioni v. Harbor Cove
Assocs., 308 AD2d 441, 442 (2d Dept. 2003). ("[w]here an employee is injured in
a fall from a ladder, which is not otherwise shown to be defective, the issue of
whether the ladder provided the employee with the proper protection required
under [Labor Law §240(1)] is a question of fact for the jury").
Stilts are considered the equivalent of a "safety device" under the statute.
Miller v. C.O. Falter Construction Corp., 226 AD2d 1110 (4th Dept. 1996). The
fact that a plaintiff is injured while using one safety device provided by defendant
does not mean, as a matter of law, that defendant should have provided another,
different safety device. Weinberg, 48 AD2d at 917 (plaintiff s claim that he would
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Nicometi v. Vineyards of Fredonia
AFL-2013-00280
Letter Brief for Respondent Winter-Pfohl, Inc.
November 25, 2013
not have fallen and become injured if defendant had provided another, different
safety device was rejected by the court as "speculative [citation omitted] and
unsupported, and insufficient to defeat summary judgment" for defendant).
Here, plaintiff was allegedly injured after slipping on a patch of ice on a
ground level floor (R.854). There has been no allegation that the stilts were
defective in any way (R.854). Any allegation that a different safety device would
have prevented plaintiff from slipping on the ice is pure speculation and serves
only to demonstrate that plaintiff was injured as a result of a risk that was entirely
different from the risk that the safety devices contemplated in Labor Law §240(1)
are supposed to protect against.
Moreover, plaintiff has testified that he would not have used any other
devices, such as a scaffold or a ladder for this job, and that he had "everything
necessary for the job" (R.855). This is corroborated by the other two workers
present that day as well as the supervisor, Hilliker (R.855). Accordingly, since the
stilts were not defective, whether defendants should have provided any additional
safety devices is, at the very least, an issue of fact that precludes summary
judgment for plaintiff.
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Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for Respondent Winter-Pfohl, Inc.
November 25, 2013
B. THERE IS A TRIABLE ISSUE OF FACT WHETHER
DEFENDANTS' PURPORTED VIOLATION OF LABOR LAW
§240(1) WAS A PROXIMATE CAUSE OF PLAINTIFF'S
INJURIES OR WHETHER PLAINTIFF'S ACTIONS WERE
THE SOLE PROXIMATE CAUSE OF THOSE INJURIES.
Assuming, arguendo, that there was a violation of section 240(1), plaintiff
must still show that the violation was "a contributing cause of his fall." Blake, 1
NY3d at 289; Duda v. John W. Rouse Construction Corp., 32 NY2d 405, 410
(1973) ("[v]iolation of the statute, alone, is not enough; plaintiff was obligated to
show that the violation was a contributing cause of his fall"); Hajderlli v. Wiljohn
59 LLC, 71 AD3d 416 (1st Dept. 2010) (proximate cause was not established
where plaintiffs use of the ladder was not what caused him to fall when his
supervisor, not knowing that plaintiff was on the ladder, pulled it away). Where
plaintiff's own conduct was the sole proximate cause of the accident, no liability
under section 240(1) can attach. Blake, 1 NY3d at 290.
Where "a reasonable jury could [conclude] that plaintiff's actions were the
sole proximate cause of his injuries," the issue of liability cannot be decided as a
matter of law, but must go to the jury. Weininger v. Hagedorn & Co., 91 NY2d
958, 960 (1998). A defendant's presentation of evidence that the worker was
injured while engaged in an activity that she had been expressly warned against
created an issue of fact whether she was a recalcitrant worker and, if so, whether
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Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for Respondent Winter-Pfohl, Inc.
November 25, 2013
her actions were the sole proximate cause of her injuries, precluding summary
judgment. Andrews v. Ryan Homes, Inc., 27 AD3d 1197, 1198 (4th Dept. 2006);
see also Thome v. Benchmark Main Transit Assocs., LLC, 86 AD3d 938, 939-940
(4th Dept. 2011) (defendants raised a triable issue of fact as to proximate cause
where they "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").
Here, in his deposition testimony, supervisor Hilliker states that he
specifically told plaintiff to "not insulate the area" where there was ice, and that he
issued this instruction no more than fifteen minutes before plaintiff fell (R.856).
Plaintiff testified that he saw the ice on the floor, was concerned for his own safety
and discussed this concern with Hilliker (R.856). Nevertheless, plaintiff went to
work in the icy area that, approximately fifteen minutes earlier, he was told not to
insulate, slipped on the ice and fell (R.856). Plaintiff's knowledge of the separate
hazard and his failure to obey instructions create the possibility that a reasonable
jury could conclude that plaintiff was a recalcitrant worker and that his actions
were the sole proximate cause of his injury; if plaintiff had obeyed his supervisor's
instruction to not insulate the area where there was ice, he would not have slipped
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Nicometi v, Vineyards of Fredonia
APL-2013-00280
Letter Brief for Respondent Winter-Pfohl, Inc,
November 25, 2013
on the ice. Accordingly, under Thome, Andrews and Weininger, this issue cannot
be decided as a matter of law but must go to the jury.
Plaintiff cites several cases as authority for the proposition that the non-
delegable duty of section 240(1) "is not met merely by providing safety
instructions" (R.877-880). This point was never in dispute. Plaintiff was provided
with stilts, a safety device under the statute. See Miller, 226 AD2d 1110. The
stilts protected plaintiff from the risk that arose from the elevation differential —
they were never intended to protect him from the risk of ice at ground level.
Plaintiff cites Jiminez v. Nidus Corp., 288 AD2d 123 (1st Dept. 2001), but this
case in not applicable to the situation at bar because in that case it was undisputed
that no safety device was provided. In this instance, the safety directive by Hilliker
was in addition to, and not a substitute for, the appropriate equipment provided to
plaintiff for his work at an elevated height.
Plaintiff argues that Hilliker's "self-serving statement" and the denial of
same by plaintiff and his co-workers is insufficient to raise a question of fact. It
bears noting, however, that neither Hilliker nor his employer is a party to this
action who can be held accountable for what happened. It also bears noting that
Grzeskowiak, who plaintiff argues specifically denied receiving any warning from
Hilliker, also denied that Hilliker was even there that day (R. 459), contrary to the
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Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for Respondent Winter-Pfohl, Inc.
November 25, 2013
sworn testimony of plaintiff and his other co-worker, Ellsworth; and Ellsworth
doesn't even recall there being any ice on the floor (R. 690).
Issues of credibility of all four witnesses, including plaintiff, abound in this case,
even about matters for which there should be no dispute (R. 858-859) and, hence,
plaintiff's dismissiveness of Hilliker's sworn testimony is unwarranted.
C. THE ABSENCE OF AN INSTRUCTION TO PLAINTIFF NOT
TO INSULATE THE AREA WHERE THERE WAS ICE ON
THE FLOOR WOULDN'T NECESSARILY PRECLUDE THE
"SOLE PROXIMATE CAUSE" DEFENSE IF PLAINTIFF
MISUSED THE STILTS ANYHOW.
As argued by counsel for Defendant-Respondent-Appellant The Vineyards
of Fredonia, LLC ("Vineyards") in his motion for leave to appeal, Hilliker's
instruction to plaintiff not to insulate the area where there is ice on the floor simply
underscores plaintiff's negligent misuse of stilts by entering an area already known
to him to be slippery because of ice on the floor.
It was a common and accepted practice to use stilts for the work that he was
doing, and the stilts were a safe and appropriate device for that work, as long as
plaintiff didn't misuse them by entering an area that he knew might be slippery
from ice on the floor.
This case is factually indistinguishable from Blake, in which the plaintiff
was provided a proper safety device — an extension ladder — which like the
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Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for Respondent Winter-Pfohl, Inc.
November 25, 2013
plaintiffs stilts, did not have any defect, but failed to protect him due solely to
plaintiffs own negligence in using it:
At trial, plaintiff again conceded that he could not
identify a defect in the ladder, that it was stable and there
was no reason to have it steadied during use. He also
revealed that he was not sure if he had locked the
extension clips in place before ascending the rungs. At
the close of the case, the court asked the jury to indicate
on the verdict sheet whether NHS had "the authority to
direct, supervise and control Mr. Blake's work" at the
residence. The jury answered yes. In response to the
second inquiry ("Was the ladder being used by plaintiff
Rupert Blake so constructed, operated as to give proper
protection to plaintiff?"), the jury again said yes, leading
to the inescapable conclusion that the accident happened
not because the ladder malfunctioned or was defective or
improperly placed, but solely because of plaintiff's own
negligence in the way he used it.
Blake, 1 NY3d at 284.
Similarly, in this case, there is a factual issue as to whether plaintiffs injury
was caused not by some inadequacy of the stilts, but whether it was solely
attributable to the manner in which plaintiff used them in an area that he could
have avoided, had he been using due care for his own safety.
CONCLUSION
Plaintiff's accident falls outside the scope of Labor Law §240(1) because the
accident was not the result of an elevation-related risk but, rather, it was the result
of a separate and unrelated hazard, namely, ice on the floor.
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Nicometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for Respondent W nter-Pfohl, Inc.
November 25, 2013
Even if Supreme Court properly concluded that plaintiff's fall was the result
of an elevation-related risk for which Labor Law §240(1) provides protection, then
there is still a triable issue of fact whether plaintiff's actions were the sole
proximate cause of his injuries.
The Respondent-Appellant, Winter-Pfohl, Inc., therefore requests that this
Court reaffirm its reasoning in Melber and dismiss plaintiff's cause of action under
Labor Law §240(1) or, in the alternative, that it affirm the holding of the
intermediate appellate court that there is a triable issue of fact whether plaintiff's
actions were the sole proximate cause of his injuries.
DATED: Buffalo, New York
November 25, 2013
Respectfully submitted,
KENNEY SHELTON LIPTAK NOWAK LLP
treieL4 ez:ac
Robert D. Leary, Partner
RDLecti-vksInlaw.coin
RDL:njs
Enc.
cc: John E. Ballow, Esq., The Ballow Law Firm, P.C. (w/ enc.)
Laurence D. Behr, Esq., Barth Sullivan Behr (w/ enc.)
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N icometi v. Vineyards of Fredonia
APL-2013-00280
Letter Brief for Respondent Winter-Pfohl, Inc.
November 25, 2013
Michael V. McLaughlin, Esq., Baxter Smith & Shapiro, P.C. (w/ enc.)
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Nicometi v. Vineyards of Fredonia
APL-2013-00280
STATE OF NEW YORK COURT OF APPEALS
MARC A. NICOMETI,
Plaintiff-Respondent,
AFFIDAVIT OF SERVICE
VS.
THE VINEYARDS OF FREDONIA, LLC,
WINTER-PFOHL, INC.,
Defendants-Appellants, APL-2013-00280
THOMAS WHITNEY AND SCOTT PFOHL,
Defendants,
WINTER-PFOHL, INC.,
Third-Party Plaintiff-Appellant.
VS.
WESTERN NEW YORK PLUMBING —
ELLICOTT PLUMBING AND REMODELING CO., INC.,
Third-Party Defendant-Appellant.
THE VINEYARDS OF FREDONIA, LLC,
Third-Party Plaintiff-Appellant.
VS.
WESTERN NEW YORK PLUMBING —
ELLICOTT PLUMBING AND REMODELING CO., INC.,
Third-Party Defendant-Appellant.
STATE OF NEW YORK
SS.:
COUNTY OF ERIE
NORMA J. STADING, being duly sworn deposes and says:
I am not a party to this action, am over 18 years of age and reside in Cheektowaga, New
York. On November 25, 2013, I served the within Letter Brief for Respondent Winter-Pfohl, Inc.,
by United States mail, in a post-paid, properly addressed wrapper, by depositing a true copy of
same in an official depository in Buffalo, New York, under the exclusive care and custody of the
United States Postal Service, to the following:
John E. Ballow, Esq.
The Ballow Law Firm, P.C.
8226 Main Street
Buffalo, New York 14221
Laurence D. Behr, Esq.
Barth Sullivan Behr
43 Court Street, Suite 600
Buffalo, New York 14202-3101
Michael V. McLaughlin, Esq.
Baxter Smith & Shapiro, P.C.
182 Dwyer Street
West Seneca, New York 14224
Sworn to before me this
25th day of November, 2013.
Notary Public
Jessica Nicole Reich
Notary Public, State of New York
No.02RE6260892
Qualified in Erie County
Commission Expires May 7, 201
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