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To be Argued by:
MICHAEL J. HUTTER JR.
Special Counsel
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.
BRIEF FOR APPELLANT-RESPONDENT
MARC A. NICOMETI
THE BALLOW LAW FIRM, P.C.
JOHN E. BALLOW, ESQ., Of Counsel
JASON A. RICHMAN, ESQ., Of Counsel
Attorneys for Plaintiff-Appellant-
Respondent Marc A. Nicometi
8226 Main Street
Buffalo, New York 14221
Telephone: (716) 634-0500
Facsimile: (716) 634-9075
Date of Completion: April 11, 2014
BATAVIA LEGAL PRINTING, INC.— Telephone (866) 768-2100
TABLE OF CONTENTS
Table of Authorities…………………….………………………………………………… ii
Questions Presented……………………….....…………………………………………… iv
Statement of Facts……………………………………………………………………….… v
Argument………………………………………………………………………………….. 1
I. A PRIMA FACIE CASE OF ENTITLEMENT TO SUMMARY JUDGMENT
ON LIABILITY PURSUANT TO LABOR LAW § 240(1) HAS BEEN
ESTABLISHED BY THE APPELLANT-RESPONDENT. ……………………… 1
A. Labor Law §240(1) is applicable to the facts and circumstances of this
fall across an elevation differential that resulted in gravity driven injuries….. 1
B. The improper utilization of stilts on a slippery icy surface coupled with the
uncontroverted fact that the stilts slipped, moved, kicked out, and fell
established a prima facie case of violation of Labor Law § 240(1)………….. 2
II. RESPONDENT-APPELLANTS, IN RESPONSE TO APPELLANT-
RESPONDENT’S PRIMA FACIE DEMONSTRATION OF ENTITLEMENT
TO JUDGMENT, HAVE FAILED TO RAISE ANY QUESTION OF FACT
MATERIAL TO THE DETERMINATION OF LIABILITY UNDER LABOR
LAW §240(1). ………………………………………………………………...… 12
A. The presence of ice on an elevated workstation does not override the otherwise
applicable protections of Labor Law §240(1) with respect to the area of that
elevated workstation where the ice is present…………………………………. 12
B. A safety instruction of the sort alleged to have been issued in this case is not
material to the determination of liability under the nondelegable provisions
of Labor Law §240(1)…………………………………………………………. 20
Conclusion…………………………………………………………………………………. 31
i
TABLE OF AUTHORITIES
Cases:
Allen v. Cloutier Constr., 44 NY2d 290 (1978)……………………………………… 7
Alvarez v Prospect Hosp., 68 NY2d 320 (1986)…..…………………………………. 21, 22
Aragon v 233 W. 21st St., 201 AD2d 353 (1st Dept. 1994)...………………………… 6
Aton v. Syracuse University, 24 A.D.3d 1315 (4th Dept. 2005)……………………… 29
Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 (2003)…………….. 6, 7, 24, 29
Bland v. Manocherian, 66 NY 2d 452 (1985)………………………………………... 8
Broggy v Rockefeller Group, Inc., 8 NY3d 675 (2007)……………………………… 15
Elliott v. City of New York, 95 N.Y.2d 730 (2001)………………………………….. 9
Ewing v. ADF Const. Corp., 16 A.D.3d 1085 (4th Dept. 2005)…………………….... 28
Ferra v. County of Wayne, 147 A.D.2d 964 (4th Dept. 1989)……………….……….. 13, 14
Gallagher v. New York Post, 14 N.Y.3d 83 (2010)…………………………………... 24
Gordon v Eastern Ry. Supply, 82 NY2d 555 (1993)…………………………………. 20, 21, 25, 29
Gordon v Eastern Ry. Supply, 181 A.D.2d 990 (4th Dept. 1992)…………………….. 28
Guzman v. Haven Plaza Hous., 69 NY2d 559 (1987)………………………………... 10
Hagins v. State, 81 NY 2d 921 (1993)………………………………………………... 20, 21, 29, 30
Hart v. City Theatres Co., 215 NY 322 (1915)……………………………………….. 10
Haystrand v. County of Ontario, 207 A.D.2d 978 (4th Dept. 1994)…………………... 28
Jiminez v. Nidus Corp., 288 AD2d 123 (1st Dept. 2001)……………………………... 14
Joblon v. Solow, 91 N.Y.2d 457 (1998)………………………………………………. 2
Kalofonos v. State of New York, 104 AD 2d 75 (2nd Dept. 1984)…………................. 9
Klein v. City of New York, 89 N.Y.2d 833 (1996)…………………………………… 5, 11, 13, 18
Kurcsics v. Merchs. Mut., 49 N.Y.2d 451 (1980)…………………………………….. 9
Long v. Cellino & Barnes, P.C., 68 A.D.3d 1706 (4th Dept. 2009)…………………… 28, 29
Long v. Forest-Fehlhaber, 55 N.Y.2d 154 (1982)…………………………………….. 8
Major v. Waverly & Ogden, 7 NY2d 332 (1960)……………………………………... 7
Matos v. Garden State Brick, 272 A.D.2d 70 (1st Dept. 2000)………………………... 18
Melber v. 6333 Main Street, Inc., 91 N.Y.2d 759 (1998)……………………………... 14, 16-19, 22, 32
Miles v Great Lakes Cheese of N.Y., 103 AD3d 1165 (4th Dept. 2013)………………. 24
Panek v. County of Albany, 99 N.Y.2d 452 (2003)…………………………………… 5
ii
Salazar v Novalex Contr. Corp., 18 N.Y.3d 134 (2011)………………………………. 15
Schumer v. Caplin, 241 NY 346 (1925)……………………………………………….. 7
Stolt v. General Foods Corp., 81 N.Y.2d 918 (1993)………………………………….. 20, 21
Striegel v Hillcrest Hgts. Dev. Corp., 100 N.Y.2d 974 (2003)………………………… 13
Szuba v Marc Equity Props., Inc., 19 AD3d 1176 (4th Dept. 2005)….…………...……. 25
Thome v. Benchmark Main Transit Assoc’s, 86 A.D.3d 938 (4th Dept. 2011)………… 23, 24
Thompson v. St. Charles Condominiums, 303 AD 2d 152 (1st Dept. 2003)…………… 6
Rocovich v. Consol. Edison Co., 78 NY2d 509 (1991)………………………………… 2, 20
Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 (1993)……………...…………. 6
Runner v New York Stock Exch., Inc., 13 NY3d 599 (2009)………………………….. 2
Whiting v Dave Hennig, Inc., 28 AD3d 1105 (4th Dept. 2006).………..….…………… 24
Zimmer v. Chemung County Performing Arts, 65 NY2d 513 (1985)………………….. 5
iii
QUESTIONS PRESENTED
1. Can owners and contractors effectively delegate, to workers, the
nondelegable responsibility for the safe provision, placement, and operation of
elevation related safety devices assigned to those owners and contractors by the
legislature, by merely issuing an instruction that workers work around a specific
unabated and unguarded hazard known to be present at the site of, and adverse to,
the subject elevated construction work?
2. Where a worksite elevation differential must be crossed in the
performance of certain construction work, does the precipitation, during the course
of the actual performance of that elevated work, of a fall across that elevation
differential, by ice, somehow supersede the activating elevation differential thereby
nullifying the otherwise controlling protections of Labor Law §240(1)?
iv
Marc Nicometi was a construction worker at the time of his fall and injury;
he was an employee of a subcontractor hired by the owners through their general
contractor (R.32, 39, & 44) to perform work associated with, and indispensable to,
the construction of the subject multiunit residential apartment building.
The work that Mr. Nicometi was performing consisted of permanently
installing, nine or ten feet above the ground (R.230), certain ceiling components,
specifically insulation (R.144), as a structural part of a building being constructed.
In order to accomplish this work Marc Nicometi required the use of a safety
device that could grant him access, across an elevation differential, to the ceiling
level work station located, again, nine or ten feet above the floor surface
immediately below it (R.230).
This twenty-one year old construction worker was actively engaged in
performing elevated construction work, with his hands to the ceiling of the very
room he had been instructed to insulate (R.136, Lines 17-22), at the time of his fall
across the very elevation differential that had required the use of the elevation
related safety device in the first place (R.316, 503, 573, 629 - Lines 10-21).
The sole provided safety device was a pair of stilts (R.565) as regulated and
exclusively authorized in New York State by the NY Labor Law, through the New
York Department of Labor, and its promulgation of the Industrial Code,
specifically under 12 NYCRR § 23-5.22 et sequentia.
v
There was no scaffolding on this worksite on the date of the subject incident
(R.547). There was no scaffolding readily available to the workers at the time of
the accident (R.547). The scaffolding explicitly required by 12 NYCRR §23-5.22
for all stilt use in New York was neither provided nor readily available (R.547).
The floor in the specific room wherein Marc Nicometi was directed to work,
and was working at the time of his fall, had not been kept free from slippery
substances (R.480) as specifically mandated by 12 NYCRR §23-5.22(f) whenever
stilts are to be used in connection with construction work in the State of New York.
A slippery substance, known to be present (R.613), unabated, and unguarded
at the work’s situs, caused the untoward movement of the stilts when their footings
were foreseeably placed upon it (R.478), and thereby precipitated a fall across the
activating elevation differential (R. 480). Marc Nicometi’s acceleration across that
elevation differential was driven by the work of gravity acting upon his person.
The failure of the stilts to support him at his required nine or ten foot
working elevation prevented this worker from safely completing the elevated task
for which the stilts were specifically required in the first place (R.478 & 480).
The presence of ice on the floor beneath the required elevated work rendered
that work obviously and by admission, more difficult and dangerous (R. 590).
vi
ARGUMENT
I. A PRIMA FACIE CASE OF ENTITLEMENT TO SUMMARY JUDGMENT
ON LIABILITY PURSUANT TO LABOR LAW § 240(1) HAS BEEN ESTABLISHED
BY THE APPELLANT-RESPONDENT.
It is indisputable fact that Labor Law §240(1) applies to the task of installing
insulation in the nine to ten foot high ceiling of a building being newly constructed.
It is uncontroverted and indisputable fact that the plaintiff Appellant-
Respondent was a worker actively engaged, at an elevation, in the course of just
such elevated construction work on the day, and at the very moment, of this
incident.
The plaintiff was therefore undeniably working under the aegis of the statute
and was entitled to have “proper protection” so constructed, placed, and operated
as to enable his safe completion of the elevated construction work in which he was
then employed. The Defendant-Appellants’ contention that Labor Law § 240(1)
does not apply is misstated or incorrect.
A. Labor Law §240(1) is applicable to the facts and circumstances of
this fall across an elevation differential that resulted in gravity
driven injuries.
Labor Law §240(1) is applicable generally to every new multiunit apartment
building construction site in New York State, including the one in question here, to
the extent that workers required to expose themselves to elevation related dangers
are absolutely entitled to have owners and contractors provide, place, and operate
proper protection enabling the safe conduct and completion of their work. The
1
work of constructing the ceiling of the first floor of such a structure, including
installing insulation nine or ten feet above the floor, is a qualifying construction
task under the same section of law (see, Joblon v. Solow, 91 N.Y.2d 457 (1998)).
Marc Nicometi, the plaintiff injured worker and here the Appellant-Respondent
was directed to accomplish this work in the very room wherein the subject incident
occurred. Plaintiff was actively working, hands to ceiling, on his elevated task
when he was caused to fall by the untoward movement of the sole safety device
supporting him at the elevated level of his work. In order to attempt his work Marc
Nicometi had to be elevated by something in order to reach the elevated immediate
site of his assigned elevated task. At the time of his fall the owners and contractors
were required by law to furnish, place, and operate proper protection to enable his
safe undertaking and completion of this elevated work (Labor Law §240(1);
Rocovich v. Consol. Edison Co., 78 NY 2d 509 (1991); Runner v. New York Stock
Exch., Inc., 13 NY3d 599 (2009)).
B. The improper utilization of stilts on a slippery icy surface coupled
with the uncontroverted fact that the stilts slipped, moved, kicked
out, and fell established a prima facie case of violation of Labor
Law § 240(1).
Ice was known to be present on the surface of the floor in the assigned room
in advance of starting the work on the day of injury. The ice was, at the very least,
a 16 square foot area according to Marc Nicometi’s supervisor, Raymond Hilliker
(4’ by 4’ area). The floor surface of this room was a single unbroken expanse of
2
flooring upon which the icy condition was not segregated, isolated, or blocked off
in any way. No step was taken to guard, cover, or abate the icy condition of that
floor as noted by Justices Fahey and Whalen in their dissent below. Ice is a
slippery substance and it is obvious through simple common sense that ice makes
the work of walking on, and working from, stilts more difficult and more
dangerous. Additionally, Mr. Hilliker, the supervisor, candidly admits on this
record that walking on stilts on ice is dangerous (he testified that “it would be
unsafe to be walking on ice on stilts.” Hilliker EBT, Page 62, R. 590).
Furthermore the Respondent-Appellants also recognize the impropriety of stilt use
in the area of an icy floor. The sole provided safety device was a pair of stilts. No
other devices were placed and operated for the use of workers. No other devices
were provided, present, or available anywhere on the site.
The plaintiff Appellant-Respondent Marc Nicometi was directed into the
room for the purpose of constructing the ceiling through the permanent installation
of insulation. This task necessarily required the use of Marc Nicometi’s eyes
directed at the ceiling. Because he was approaching the ceiling from the only
possible direction, i.e., from below it, this meant that he had to look up, and away
from the floor in order to do his work, again as noted by Justices Fahey and
Whalen in their dissent below. He did so. During the time that he was actively
engaged at that elevated workstation, in the midst of the very task requiring the
3
stilts in the first place, and while he was looking up at the elevated task that he was
undertaking, the stilts foreseeably encountered the proscribed ice known in
advance to be present on the floor in that very room. When they encountered the
ice, the stilts unintentionally shifted, moved, failed, collapsed, and fell despite not
being in and of themselves, inherently defective. Irrespective of any inherent
defect, the stilts were not properly placed and operated as required by Labor Law
§240(1), again as noted by Justices Fahey and Whalen in their dissent below.
Marc Nicometi fell with them. Again, the fall crossed the elevation differential
that had necessitated the stilt use in the first place. Though precipitated by ice, it
was the unprotected and / or insufficiently protected fall across a construction site
elevation differential that directly and proximately caused the injuries and
damages. The plaintiff travelled from his elevated position, where he had been
immediately and actively engaged with an elevated construction task, across that
nine or ten foot elevation differential under the sole and exclusive power of the
force of gravity acting upon his person.
As demonstrated above, and consistent with the findings of both the Trial
Court and the Appellate Division, Labor Law § 240(1) required that Appellant
Respondent Nicometi be provided proper protection to enable his safe completion
of this ceiling insulation installation. The definition of “proper protection” is not
expressly set forth by the legislature in §240(1). What the statute does specify
4
however is that the special class of workers to whom its protections apply, shall be
furnished with elevation related safety devices which shall be so constructed,
placed, and operated as to protect them in the course of their elevated work. The
directed liberal application of this statute has yielded many decisions from this
Court holding that the duties assigned by this section to the owner, contractors, and
their agents are nondelegable, and upon a finding of violation and proximate
causality, the breach of those duties results in absolute liability (Zimmer v.
Chemung County Performing Arts, 65 NY2d 513 (1985)). It is also well
established that where no safety device at all is provided, a violation of §240 has
been established as a matter of law (id. at 522 [“The failure to provide any safety
devices is such a violation.”]). Similarly, where a device that has been provided
fails, slips, collapses, or otherwise moves in some unintentional way due to the
condition of the floor upon which it is placed, precipitating a fall, a violation of
§240 has been established, prima facie, as a matter of law (Klein v. City of New
York, 89 N.Y.2d 833 (1996) [“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 condition of the floor”]; Panek v. County of Albany, 99
N.Y.2d 452 (2003) [Summary judgment granted where “plaintiff claimed that the
ladder failed to provide him with proper protection because it was misplaced,
unbalanced or inadequately secured.” at 456, and where “Plaintiff's allegation that
5
the ladder ‘gave way’ or collapsed beneath him, causing him to fall, was
uncontested” at 458]; Thompson v. St. Charles Condominiums, 303 AD 2d 152 (1st
Dept. 2003) [“Indeed, where a safety device has been furnished, and it collapses, a
prima facie case of liability under Labor Law § 240 (1) is established (see Aragon
v 233 W. 21st St., 201 AD2d 353 [1994])”]; See Also, Ross v Curtis-Palmer
Hydro-Elec. Co., 81 N.Y.2d 494 at 501 (1993) [“In other words, Labor Law § 240
(1) was designed to prevent those types of accidents in which the scaffold, hoist,
stay, ladder or other protective device proved inadequate to shield the injured
worker from harm directly flowing from the application of the force of gravity to
an object or person. The right of recovery afforded by the statute does not extend
to other types of harm, even if the harm in question was caused by an inadequate,
malfunctioning or defectively designed scaffold, stay or hoist.” (Emphasis in the
original)]; Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280 (2003)
[to impose liability for a ladder injury even though all the proper safety precautions
were met would not further the Legislature's purpose.]).
It is also well established that stilt use is specifically authorized and
regulated in New York by a specific explicit regulation. The authorizing
regulation limits the proper use of stilts by proscribing their use in certain
specifically enumerated circumstances. 12 NYCRR § 23-5.22(f) mandates that
stilts “shall” be used only on floor surfaces that are kept free from slippery
6
substances. Use of stilts on surfaces that are not kept free from slippery
substances, in violation of the sole directly applicable NYCRR rule by which stilt
use is authorized and specifically regulated, is not “proper” by edict of the
Commissioner of the Department of Labor, as authorized by the New York Labor
Law, and as codified in 12 NYCRR § 23-5.22(f) read in conjunction with 12
NYCRR § 23-1.4(a). Protection that is not proper by regulation of the authorizing
agency controlling this construction site, is also not proper for Labor Law §240(1)
purposes by plain rules of statutory construction (See, Labor Law §§ 21, 27, 27-A,
29, 200, 240, and 241), by application of the relevant decisional law (including
again, Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280 (2003) [“to
impose liability for a ladder injury even though all the proper safety precautions
were met would not further the Legislature's purpose.” (emphasis added)]), and as
a matter of inescapable common sense. However, because these rules set forth in
the Industrial Code, are administrative rather than legislative, their violation does
not automatically confer liability in the same manner that a violation of a direct
product of the legislature would. This has been the holding of this Court
consistently over many decades in many differing contexts outside of Labor Law
§240(1) causes of action (Schumer v. Caplin, 241 NY 346 (1925); Major v.
Waverly & Ogden, 7 NY2d 332 (1960); Allen v. Cloutier Constr., 44 NY2d 290
(1978); et alia. Indeed in dicta and in dissent, Justices of this Court have also
7
written that the standards are irrelevant to a Labor Law §240(1) analysis (Bland v.
Manocherian, 66 NY 2d 452 at 463 and 465 (1985)). In a frequently cited
statement by this Court of the distinction between a legislative and administrative
regulatory violation, Long v Forest-Fehlhaber, 55 N.Y.2d 154 (1982), the Court
directly held that a violation of the administrative rules of the Industrial Code,
enforced under Labor Law §241(6), does not eliminate comparative negligence as
a potential consideration in such an action. Again the holding in Long was
addressed to an action under Labor Law §241(6) not Labor Law §240(1). As the
Court of Appeals later articulated in distinguishing Long, §240(1) is a different
matter as it (a legislative enactment) does (by itself) eliminate consideration of
comparative negligence in the presence of violation:
This court's decision in Long v Forest-Fehlhaber, (55 N.Y.2d
154) is inapposite. In that case, we held that a violation of Labor
Law § 241 (6) does not constitute negligence as a matter of law
resulting in absolute liability because "subdivision 6 does no
more than broadly provide" that the work area "`provide
reasonable and adequate protection and safety.'" (Id., at p 160.)
We explicitly contrasted section 240 and the first five
subdivisions of section 241 which set forth more specific
requirements, where the failure to comply automatically renders
the owner or contractor absolutely liable without regard to the
worker's own negligence. (Emphasis Added)
Bland v. Manocherian, 66 NY 2d 452 at 460 (1985)
The Industrial Code is applicable in this case, not as the font of absolute liability,
but as part of the consideration of “the contours of the statutory language”
undertaken by the Court in its analysis of the facts and circumstances of this
8
particular case aimed at determining the propriety of both the provided §240(1)
protections, and dispositive pre-trial relief (Kalofonos v. State of New York, 104
AD 2d 75 at 80-81 (2nd Dept. 1984)). Among the facts and circumstances relevant
to the Court’s §240(1) analysis in this matter is that the owners and contractors
utilized stilts in circumstances wherein their use was strictly and mandatorily
proscribed by the Industrial Code which the Legislature has declared shall be, “for
all purposes” given “the full force and effect of law” and shall be “enforced in the
same manner as the provisions of this article.” Labor Law §27(d). The purpose of
the Industrial Code is, in part, to protect workers (12 NYCRR 23-1.2 [“special
regulations for their [workers’] protection”]) by setting forth proper safety
standards for construction work. Furthermore, while it is true that “…a declaration
that a local ordinance or an administrative rule or regulation ‘has the force and
effect of law’ does not make it so…” Elliott v. City of New York, 95 N.Y.2d 730
(2001) [again addressing the question outside of a Labor Law §240(1) context], the
Court does still owe a degree of deference to the administratively promulgated
specific conduct regulating health and safety directives explicitly controlling the
use, in New York State, of the exact and sole elevation related safety device
furnished to Marc Nicometi for his use on this icy floor. See, Kurcsics v. Merchs.
Mut., 49 N.Y.2d 451 at 459 (1980) [“Where the interpretation of a statute or its
application involves knowledge and understanding of underlying operational
9
practices or entails an evaluation of factual data and inferences to be drawn
therefrom, the courts regularly defer to the governmental agency charged with the
responsibility for administration of the statute. If its interpretation is not irrational
or unreasonable, it will be upheld. (citations omitted) Where, however, the
question is one of pure statutory reading and analysis, dependent only on accurate
apprehension of legislative intent, there is little basis to rely on any special
competence or expertise of the administrative agency and its interpretive
regulations are therefore to be accorded much less weight”]).
Here the Industrial Code provisions are rules of the sort that do arise from
the special competence of the Department of Labor in its legislatively assigned
task of regulating New York worksite safety. Again, according to the Legislature
these rules “shall for all purposes have the full force and effect of law” and are to
be “enforced in the same manner as the provisions of this article.” See, Labor Law
§27(d). That said, it is of course still true that a violation of an Industrial Code
provision does not create absolute liability as does a violation of Labor Law
§240(1). Though there have been cases in which administrative regulations have,
by this Court, been found to have the force and effect of a statute (see e.g.,
Guzman v. Haven Plaza Hous., 69 NY 2d 559 (1987) and Hart v. City Theatres
Co., 215 NY 322 (1915)) such a course is not necessary in the instant case because
Labor Law §240(1) is the vehicle through which absolute liability is imposed; here
10
the Industrial Code need not result in absolute liability because, inescapably, Labor
Law §240(1) already does.
Even if there had not been a specific controlling section of “law” mandating
that this stilt use was not proper, an analysis of the situational appropriateness of
the protection provided to Mr. Nicometi, coupled with the unrefuted fact that it
failed slipped and kicked out from beneath him, in the facts and circumstances of
this peculiar case, in the context of the prior judicial interpretation of Labor Law
§240(1), undeniably yields the same result, as a matter of long settled law, i.e., a
finding that a prima facie case of entitlement to judgment has been presented on
this record. A scaffold equivalent safety device was used in circumstances where
the safety device was not safe, where the safety device did not enable the safe
completion of the worker’s elevated task, where the foreseeable untoward
movement of the safety device caused the worker to fall across the elevation
differential that first required the use of said device, where the safety device was
foreseeably placed with its footing in contact with a slippery substance, where the
safety device kicked out from underneath the worker that it had been supporting at
an elevation, where the device fell with the worker across that activating elevation
differential, and where no other device or measure was in place to prevent or break
the worker’s fall. This scenario establishes a prima facie case of violation of Labor
Law §240(1) as a matter of law (see, Klein v. City of New York, 89 N.Y.2d 833
11
(1996)). This is true irrespective of the fact that the defendants’ violation of Labor
Law § 240(1) was also inescapably illustrated by the mandatory rules of the
Commissioner of the Department of Labor as authorized by the Labor Law, and as
applied in the analysis of the nondelegable duties and absolute liability imposed by
Labor Law §240(1) read in conjunction with 12 NYCRR § 23-5.22(c) and (f) as
applied to this action.
II. RESPONDENT-APPELLANTS, IN RESPONSE TO APPELLANT-RESPONDENT’S
PRIMA FACIE DEMONSTRATION OF ENTITLEMENT TO JUDGMENT, HAVE
FAILED TO RAISE ANY QUESTION OF FACT MATERIAL TO THE
DETERMINATION OF LIABILITY UNDER LABOR LAW §240(1).
A. The presence of ice on an elevated workstation does not override
the otherwise applicable protections of Labor Law §240(1) with
respect to the area of that elevated workstation where the ice is
present.
Initially, it is the Defendant-Appellants’ errant contention that “Labor Law §
240(1) does not extend to protecting workers against the hazard of slipping on ice.”
In asserting this Nullification by Ice the owners and contractors argue that a fall
precipitated by ice cannot activate Labor Law §240(1) even where the fall crosses
a qualifying insufficiently protected elevation differential. Suggesting that §240(1)
cannot protect a worker when ice (or another slippery substance) numbers among
the proximate causes of the subject injury is just obviously wrong. The cases (and
law) to the contrary are too clear and too numerous to allow for such a
misinterpretation. The Court of Appeals, and other courts of this State, have
12
repeatedly held that where slippery conditions precipitate falls across elevation
differentials a prima facie violation of Labor Law § 240(1) has been established.
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 Defendant-Appellants
all suggest “Labor Law § 240(1) does not extend to protecting workers against the
hazard of slipping on ice”, the direct cause of Mr. Striegel’s accident, then
according to the Respondent-Appellants, Striegel must have been wrongly decided.
In Klein v. City of New York, 89 N.Y.2d 833 (1996) the Court of Appeals
again decided and held 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
13
lower court’s failure to grant summary judgment in the plaintiff’s favor, where the
improper 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”]. It simply cannot be viably argued that
precipitation by slipping on ice removes the protections of Labor Law §240(1)
from a worker whose fall across a qualifying elevation differential resulted in
gravity driven injuries (Jiminez v. Nidus Corp., 288 AD2d 123 (1st Dept. 2001)).
Respondent-Appellants on this appeal 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, and cause a fall
across the activating elevation differential, cannot result in a finding of violation of
Labor Law § 240(1) and proximately caused injury. They claim that no matter
how stilts are employed, and no matter how it is precipitated, a fall from stilts
cannot activate Labor Law §240(1) unless the stilts themselves break or are in
some other manner inherently defective.
14
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 across an elevation differential 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)
Defendants argue that the volumes of case law involving ground level hazards
precipitating the movement and the failure of other safety devices (ladders and
scaffolding) are 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, 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
15
proper and also permissible (the circumstance at bar explicitly not being among
them). 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 confirms this truth.
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)
This passage 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; whereas in Melber the answer was yes as the stilts did
not fail while supporting the worker in the conduct of his elevated task.);
16
Was the work such that the special protections were required? (Yes. As a
matter of law. In Melber, No the work of walking down a hall to retrieve a
tool did not require the use of any safety device of the sort enumerated in
§240(1));
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. In Melber, Yes the hazard was located nowhere near the elevated
task.)
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 admitted by Mr. Hilliker, and as
required by 12 NYCRR 23-5.22 (f). In Melber, No, the hazard did not render
the actual elevated work, away from which Mr. Melber was walking at the
time of his fall, any more difficult or dangerous).
In Melber, the Court of Appeals directly held that working from stilts in the rafters
of a building under construction did invoke the statute’s special protection.
Furthermore the plaintiff in Melber tripped when, in a location disparate from his
elevated task, he encountered electrical conduit protruding from the floor, which
was a necessary permanent part of the structure being constructed. Mr. Nicometi
did not trip over a permanent component of the building that was supposed to be
there; rather, he slipped on ice that was not supposed to be there, and was in fact,
proscribed.
The special protections did apply to Mr. Nicometi who was not walking
away from the site 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
17
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). (emphasis added)
Matos v. Garden State Brick, 272 A.D.2d 70 (1st 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 that kicked out from underneath
him, and was 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
18
Code. The use of the only safety device provided was obviously dangerous and
was also 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 the sole safety device moved slipped and kicked
out from under him, and 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), and on these facts, Melber does not
suggest otherwise.
An application of Labor Law §240(1) to the facts of this case, requires that
the facts of this case be considered, including the fact that the elevation related
safety device here in question was knowingly utilized in the presence of ice; ice
that was known to be present on the lower extremity of the very elevation
differential that activated §240(1). The improper, unsafe, and proscribed presence
of ice on this working surface does not nullify and supersede the violation of Labor
Law §240(1) by the owners and contractors somehow removing the case from the
protective ambit of the law, or delegating to the workers, the nondelegable
responsibility for the safe furnishing, placement, and operation of proper protection
as related to the elevation differential by which the section is activated in this
19
action (see, Rocovich v. Consol. Edison Co., 78 NY2d 509 (1991); and, Gordon v
Eastern Ry. Supply, 82 NY2d 555, 563 (1993)).
B. A safety instruction of the sort alleged to have been issued in this
case is not material to the determination of liability under the
nondelegable provisions of Labor Law §240(1).
The owner and contractors 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 arguable 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 has been established 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 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) and 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);
20
and especially Gordon v Eastern Ry. Supply, 82 NY2d 555 (1993). In Gordon the
Court of Appeals wrote:
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)
In deciding the case here at bar, the Appellate Division wrote that:
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.
(R.6a) AD Decision, Page Two (emphasis added)
In their various submissions on this appeal, the owners and contractors have
repeatedly contended that in holding that Respondent-Appellants raised a triable
issue of fact by the introduction of evidence alleging this instruction, the Appellate
Division really meant that the triable issue of fact was unrelated to the instruction,
and it was, rather, raised by some other factual evidence or circumstance that the
decision did not set forth or address anywhere in its Labor Law §240(1) analysis.
In other words, Respondent-Appellants seem to suggest that even in the absence of
the allegation with respect to this instruction, the Appellate Division would have
still found a question on sole proximate causation. This reading of the decision is
21
not supported by anything at all in the decision itself, including the dissent which
directly addressed the alleged instruction as relied upon by the majority. These
assertions by the defendant Respondent-Appellants arise from the recognition that
an instruction does not cure a defect in an inadequate safety device.
The Appellate Division majority’s opinion contradicts the Court of Appeals
as quoted and cited above by finding that by alleging the instruction in this case, a
question of fact on sole proximate causation was adduced, 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 upon
which he was actively working at the time. The Appellate Division majority found
that plaintiff met his initial burden on the motion of establishing prima facie
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.
(R.6a) 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
22
that he was directed not to work in the area where the ice was
located.
(R.6a) AD Decision, Page Two (emphasis added)
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:
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
So in other words, go work on the ceiling at an elevation in that room but do not
step into the hazardous icy spot 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)…
(R.6a) AD Decision, Page Two (emphasis added)
The sole misuse addressed by the Appellate Division majority in this case was the
failure to abide by that alleged instruction 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
23
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
which slipped and kicked out from beneath him. That the “misuse” alluded to by
the Appellate Division majority 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 directing
the avoidance of an “area” as evidence raising a material question in a factually
distinguishable circumstance. See, Thome v. Benchmark Main Transit Associates,
LLC, 86 A.D.3d 938 (4th Dept. 2011). Furthermore, in its decision of Miles v Great
Lakes Cheese of N.Y., Inc., 103 AD3d 1165 (4th Dept. 2013) the Appellate
Division reaffirmed the role of an instruction in a Labor Law §240(1) analysis
holding that:
Contrary to the court's determination, defendants failed to raise a
triable issue of fact either with respect to whether plaintiff's
alleged misuse of the scaffold was the sole proximate cause of
his injuries or with respect to whether plaintiff was a recalcitrant
worker (see Whiting v Dave Hennig, Inc., 28 AD3d 1105, 1106
[2006]). Indeed, our conclusion that plaintiff established, as a
matter of law, that defendants violated section 240 (1)
necessarily precludes a finding that plaintiff's conduct was the
sole proximate cause of his injuries (see Blake v Neighborhood
24
Hous. Servs. of N.Y. City, 1 NY3d 280, 290-291 [2003]).
Furthermore, although plaintiff was instructed to stay under the
scaffold frame during the process of raising the planks to a
higher level, he cannot be deemed to be a recalcitrant worker by
virtue of his alleged failure to abide by that instruction. Nothing
in the record suggests that plaintiff refused to use an available
and adequate safety device (see Gallagher v New York Post, 14
NY3d 83, 88-89 [2010]), and "[a]n instruction by an employer
or owner to avoid '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' " (Szuba v Marc Equity Props., Inc., 19 AD3d 1176,
1177 [2005], quoting Gordon v Eastern Ry. Supply, 82 NY2d
555, 563 [1993]). (Emphasis Added)
Miles v Great Lakes Cheese of N.Y., 103 AD3d 1165 (4th Dept. 2013)
Again, 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 Appellant-Respondent
Nicometi’s supervisor, 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
Again, he went on to testify that:
25
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
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?
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 its A.D. brief (Page 9, first partial paragraph), Mr. Gzreskowiak did
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,
26
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 that he claims to have warned separately testified that he did not warn
them at all, his self-serving statement is insufficient to create a question of fact,
even in the context of opposing a motion seeking summary judgment.
However, even if it were sufficient to raise a question of fact as to whether
Mr. Hilliker instructed the workers in that room to avoid the ice, something denied
by everyone save Mr. Hilliker himself, 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. Those stilts
foreseeably encountered the ice and slipped, kicking out from underneath he
27
worker that they had been supporting in the course of active elevated construction
work. Labor Law § 240(1) requires more than the paying of lip service to ensure
safety. Giving a safety instruction and not furnishing, placing, and operating
proper safety devices properly, results in a violation. The Courts have long so
held. The 4th Department in Ewing v. ADF Const. Corp., 16 AD3d 1085 (4th 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 (4th Dept. 2005).
The 4th Department in Haystrand v. County of Ontario, 207 A.D.2d 978 (4th 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 (4th Dept. 1994)
The 4th Department in Long v. Cellino & Barnes, P.C., 68 A.D.3d 1706 (4th 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
28
and operating such devices so as to give [a worker] proper
protection’ ”
Long v. Cellino & Barnes, P.C., 68 A.D.3d 1706 (4th Dept. 2009)
The 4th Department in Aton v. Syracuse University, 24 A.D.3d 1315(4th 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 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(4th Dept. 2005)
Again, 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)
The Court of Appeals also found such an instruction to be insufficient to raise a
material question of fact in its decision of Hagins v. State, 81 NY 2d 921 (1993).
In Hagins, the defendant offered proof that the claimant had “…repeatedly been
told not to walk across the abutment…” and sought, on the basis of that instruction,
to avoid liability. The Court rejected that argument.
29
Here Marc Nicometi was allegedly told not to walk on the ice. Saying
“don’t walk there” is still insufficient to satisfy the requirements of Labor Law
§240(1). The Hagins Court also rejected the defendant’s contention the “using an
unsafe route” was a factor that could establish sole proximate causation in the
claimant. Here, if the alleged instruction were to be credited, then the ice on the
floor in the midst of this small room was arguably not a part of the Appellant-
Respondent’s worksite, but it was irrefutably immediately adjacent to the worksite,
in fact completely and immediately surrounded by it, and not in any way
distinguished from it or guarded, except by the presence of the hazardous ice. This
is simply not a scenario in which the alleged instruction can raise an issue material
to liability under labor Law §240(1). As the Hagins Court wrote:
Similarly unavailing is the State's alternative claim that it could
not be held liable if the trier of fact adopted its factual contention
that the abutment from which claimant fell was not part of his
work area at the time of the accident. Although the State's papers
alleged in conclusory fashion that the abutment in question was
not part of the worksite, the record contains no support for that
claim. To the contrary, the State's own witness stated that the
contractor was in the process of backfilling the west abutment
wall at the time of the accident. Moreover, the wood needed to
complete claimant's job had been stored next to it. Under these
circumstances, the fact that the abutment itself may not have
been the focus of claimant's work at the time of the accident is
not alone a sufficient ground for absolving the State of liability.
Hagins v. State, 81 NY 2d 921 (1993) (emphasis added)
A mere instruction does not satisfy the requirements of Labor Law §240(1). The
contrary assertion advanced by the defendants here, that the nondelegable
30
provisions of Labor Law §240(1) can be delegated to an injured worker by the
issuance (alleged) of an instruction to avoid stepping on an unguarded hazard
known to be present in the midst of a single apartment room work area, is flatly
incorrect. This is especially obvious here where the use of stilts on such a floor
which was not “kept free from slippery substances” is never proper pursuant to a
directly applicable regulation, binding upon the owners and contractors in the
management of their construction site, and where the sole safety device furnished
to the Appellant-Respondent slipped and moved, kicking out from underneath the
him as he was actively and directly working on his assigned elevated task in the
small room within which that task had been assigned.
CONCLUSION
Where the furnishing, placement, and operation of an elevation related
safety device is improper as a matter of law, Labor Law §240(1) has been plainly
violated, and where the source of that impropriety (known ice on the floor) is also
the source of an injury producing fall across a qualifying elevation differential, the
owners and contractors of the subject project are liable to the injured worker under
the nondelegable provisions of Labor Law §240(1) as a matter of law.
The Defendant’s attempt to delegate the legislatively fixed and nondelegable
responsibility for the safe placement and operation of properly furnished elevation
related safety devices, by furnishing only a single device that was improper as a
31
matter of law, and then allegedly instructing the workers to avoid stepping on the
specific known, unabated, and unguarded hazard cannot succeed under the law.
Nor can it succeed if considered equitably. A hazard was present in the
room within which this worker was supposed to be working, and was working at
the time of his fall. That hazard rendered the elevated task of installing ceiling
level insulation around and above a hazardously slippery icy floor considerably
more difficult and dangerous (R.590; See also, Melber, supra).
The Respondent-Appellants contend that they effectively delegated the
nondelegable requirement that proper protection be provided placed and operated
by doing nothing at all but telling the injured worker to simply avoid the known
hazard while working at an elevation within that room.
So in finding a material question arising from the evidence adduced by the
Respondent-Appellants, the Appellate Division had to find that the safety
instruction or warning about an unabated and unguarded known hazard
exacerbating the dangers of an elevated construction task, coupled with the
provision of an insufficient solitary safety device that did actually slip and kick
out, the use of which was explicitly proscribed in this circumstance, somehow
effected the delegation of the nondelegable provisions of Labor Law §240(1) from
the owners and contractors upon whom the legislature fixed them, to the injured
32
worker who the legislature, and this Court, explicitly intended to protect with the
directed liberal application of this worker protection statute.
Justice Drury, at the trial court, and Justices Fahey and Whalen, at the
Appellate Division, did not err in opining that the injured worker, here, was
entitled to summary judgment in his favor on the issue of the defendants’ liability
to him under Labor Law §240(1). The material facts are beyond dispute.
Plaintiff was performing qualifying work at an elevation at the time of
his fall installing insulation into the ceiling at a new construction project.
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 owners and contractors, is
entitled to judgment in his favor on the Labor Law §240(1) cause of action.
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The Appellant-Respondent, Marc Nicometi, therefore requests, for the
reasons above, for the reasons set forth in the briefs submitted to the Appellate
Division, for the reasons set forth in his letter brief to this court, for the reasons set
forth in the Appellate Division Dissents of Honorable Justices Eugene M. Fahey
and Gerald J. Whalen, 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
April 11, 2014
Respectfully submitted,
THE BALLOW LAW FIRM, P.C.
By: s/John E. Ballow
John E. Ballow
By: s/Jason A. Richman
Jason A. Richman (Of Counsel)
Attorneys for the Appellant-Respondent
8226 Main Street
Williamsville, New York 14221
Telephone: (716) 634-0500
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