Richard Fabrizi, Respondent,v.1095 Avenue of the Americas, L.L.C., et al., Appellants, Verizon New York, Inc., et al., Defendants. [And Other Actions]BriefN.Y.January 9, 2014New York County Clerk’s Index Nos. 108280/08, 590291/09 and 590554/10 Court of Appeals STATE OF NEW YORK Index No. 108280/08 RICHARD FABRIZI, Plaintiff-Respondent, against 1095 AVENUE OF THE AMERICAS, L.L.C., J.T. MAGEN CONSTRUCTION COMPANY, INC. and DECHERT LLP, Defendants-Appellants, and VERIZON NEW YORK, INC. and TISHMAN CONSTRUCTION CORPORATION, Defendants. >> >> To Be Argued By: Brian J. Isaac Time Requested: 15 Minutes BRIEF FOR PLAINTIFF-RESPONDENT BLOCK O’TOOLE & MURPHY, LLP Attorneys for Plaintiff-Respondent By: POLLACK, POLLACK, ISAAC & DE CICCO Appellate Counsel 225 Broadway, Suite 307 New York, New York 10007 212-233-8100 bji@ppid.com Of Counsel: Brian J. Isaac Kenneth J. Gorman Date Completed: May 29, 2013 Printed on Recycled Paper (Additional Caption On the Reverse) Third-Party Index No. 590291/09 NY-1095 AVENUE OF THE AMERICAS, L.L.C., s/h/a 1095 AVENUE OF THE AMERICAS, L.L.C., Third-Party Plaintiff, against DECHERT LLP, Third-Party Defendant. Second Third-Party Index No. 590554/10 DECHERT LLP, Second Third-Party Plaintiff, against FOREST ELECTRIC CORP., Second Third-Party Defendant. i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................... iii PRELIMINARY STATEMENT ........................................... 1 BRIEF STATEMENT OF THE CASE ..................................... 2 COUNTERSTATEMENT OF FACTS.......................................4 A. Deposition Testimony of the Plaintiff .................. 4 B. Pre-trial Deposition Testimony of Chris Porcello ........................................10 C. The Defendants’ Motion for Summary Judgment ...........12 D. Plaintiff’s Cross Motion ..............................13 E. Defendants’ Opposition ................................14 F. The Plaintiff’s Reply .................................14 G. The Trial Court’s Decision and Order ..................15 H. Appeal to the First Department ........................15 ARGUMENT ....................................................... 17 POINT I DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE THE PLAINTIFF HAS COGNIZABLE §240[1] CLAIM; IN FACT, PLAINTIFF IS ENTITLED TO PARTIAL SUMMARY JUDGMENT BECAUSE THE PROTECTIVE DEVICE PROVIDED TO HIM AT THE SITE PROVED INADEQUATE TO SHIELD HIM FROM HARM DIRECTLY FLOWING FROM THE APPLICATION OF THE FORCE OF GRAVITY TO THE CONDUIT PIPE...............................17 A. Labor Law §240[1] in General ..........................17 B. Falling Objects .......................................19 C. The Compression Coupling is an “Enumerated” Device ....27 ii D. The Conduit is not Part of the Building’s Infrastructure ........................................32 POINT II ARGUMENTS REGARDING FORESEEABILITY AND SOLE PROXIMATE CAUSE ARE UNPRESERVED FOR REVIEW BY THIS COURT; IN ANY EVENT, THE RISK OF INJURY WAS FORESEEABLE FOR PURPOSES OF APPLYING THE STATUTE AND PLAINTIFF’S CONDUCT WAS NOT THE SOLE PROXIMATE CAUSE ............................. 35 A. The Risk of Injury in this Case was Foreseeable ...........................................39 B. Plaintiff’s Conduct was not the Sole Proximate Cause .......................................47 CONCLUSION ..................................................... 54 iii TABLE OF AUTHORITIES State Cases Alston v. Golub Corp., 129 AD2d 916 [3d Dept. 1987]........... 42 Andresky v. Wenger Const. Co., Inc., 95 AD3d 1247 [2d Dept. 2012] ............................................. 24 Auriemma v. Biltmore Theatre, 82 AD3d 1 [1st Dept. 2011] ...... 42 Bingham v. New York City Transit Authority, 99 NY2d 355 [2003] .......................................... 37 Blake v. Neighborhood Housing, 1 NY3d 280 [2003].......... 22, 54 Bland v. Manocherian, 66 NY2d 452 [1985].................. 18, 49 Boyle v. 42nd St. Dev. Project, 38 AD3d 404 [1st Dept. 2007] ......................................... 34, 35 Brass v. Atlas Constr., 166 AD2d 401 [2d Dept. 1990].......... 42 Brent-Grand v. Megavolt Corp., 97 AD2d 783 [2d Dept. 1983] ............................................. 38 Broderick v. Caldwell-Wingate Co., 301 NY 182 [1950].......... 51 Brown v. VJB Const. Corp., 50 AD3d 373 [1st Dept. 2008] ... 27, 28 Bush v. Goodyear Tire & Rubber Co., 9 AD3d 252 [1st Dept. 2004] ............................................. 18 Bush v. Gregory/Madison Avenue, LLC, 308 AD2d 360 [1st Dept. 2003] ............................................. 23 Cahill v. TBTA, 4 NY3d 35 [2004].............................. 53 Cammon v. City of New York, 21 AD3d 196 [1st Dept. 2005] ...... 23 Clute v. Ellis Hospital, 184 AD2d 942 [3d Dept. 1992]......... 42 Contacare, Inc. v. Ciba-Geigy Corp., 49 AD3d 1215 [4th Dept. 2008] ............................................. 53 Cosban v. NYCTA, 227 AD2d 160 [1st Dept. 1996] ................ 41 Costa v. Piermont Plaza Realty, Inc., 10 AD3d 442 [2d Dept. 2004] ............................................. 26 iv Davis v. Pizzagalli Constr., 186 AD2d 960 [3d Dept. 1992]..... 42 Matter of Edward B., 80 NY2d 458 [1992]....................... 38 Emmer v. Emmer, 69 AD2d 850 [2d Dept. 1979]................... 38 Espinosa v. Azure Holdings II, LP, 58 AD3d 287 [1st Dept. 2008] ............................................. 40 Ewing v. ADF Const. Corp., 16 AD3d 1085 [4th Dept. 2005] ...... 28 Feinberg v. Saks, 56 NY2d 200 [1982].......................... 36 Felker v. Corning, 90 NY2d 219 [1997]......................... 41 Fernandez v. BBD Dev., 103 AD3d 554 [1st Dept. 2013] .......... 51 Gabrus v. New York City Housing Authority, 105 AD3d 699 [2d Dept. 2013] ................................ 24 Gallagher v. NY Post, 14 NY3d 83 [2010]....................... 42 Gordon v. Eastern Rwy., 82 NY2d 555 [1993]................ 26, 46 Gulf Insurance Company v. Kanen, 13 AD3d 579 [2d Dept. 2004] ............................................. 38 Haimes v. New York Tel. Co., 46 NY2d 132 [1978]........... 18, 42 Hapletah v. Assessor of Town of Fallsburg, 79 NY2d 244 [1992] .......................................... 37 Harris v. City of New York, 83 AD3d 104 [1st Dept. 2011] ......................................... 26, 51 Hauff v. CLXXXII Via Magna Corp., 118 AD2d 485 [1st Dept. 1986] ............................................. 42 Hawkins v. City of New York, 275 AD2d 634 [1st Dept. 2000] .... 26 Henningham v. Highbridge Community Housing Development Fund Corp., 91 AD3d 521 [1st Dept. 2012] ...................... 21, 22 Hernandez v. 151 Sullivan Tenant Corp., 307 AD2d 207 [2003] ......................................... 54 Howell v. Bethune W. Assoc., LLC., 33 Misc.3d 1215(A) [Sup. Ct., N.Y. County 2011] ................................ 45 v Huston v. County of Chenango, 258 AD 56 [1937], aff’d, 278 NY 646 [1938] .................................... 37 Jones v. 414 Equities LLC, 57 AD3d 65 [1st Dept. 2008] ................................. 40, 42, 43, 44 Jones v. Jones, 13 AD3d 1078 [4th Dept. 2004] ................. 38 Kingsbrook Jewish Medical Center v. Allstate Ins. Co., 61 AD3d 13 [2d Dept. 2009] .................................. 53 Koenig v. Patrick Const. Corp., 298 NY 313 [1948]............. 18 Landgraff v. 1579 Bronx River Avenue, LLC, 18 AD3d 385 [1st Dept. 2005] ............................................. 25 Lichtman v. Grossbard, 73 NY2d 792 [1988]..................... 36 Long v. Forest-Fehlhaber, 55 NY2d 154 [1982].................. 18 Malloy v. Madison Forty-Five Co., 13 AD3d 385 [1st Dept. 2004] ............................................. 25 Matronardi v. Mitchell, 109 AD2d 825 [2d Dept. 1985].......... 38 Merrell v. Albany MC, 71 NY2d 990 [1988]...................... 35 Mingo v. Pirnie, 55 NY2d 1019 [1982].......................... 39 Misseritti v. Mark IV Constr. Co., 86 NY2d 487 [1995]..... 30, 31 Montgomery v. Federal Express Corp., 4 NY3d 805 [2005]........ 49 Morales v. County of Nassau, 94 NY2d 218 [1999]............... 38 Nacewicz v. RC Church, 963 NYS2d 14 [1st Dept. 2013] .......... 53 Narducci v. Manhasset Bay Assoc., 96 NY2d 289 [2001] .................................. 27, 32, 33 Naughton v. City of New York, 94 AD3d 1 [1st Dept. 2012] ...... 19 Ortega v. NYC, 95 AD3d 125 [1st Dept. 2012] ................... 43 Ortiz v. Varsity Holdings, 18 NY3d 335 [2011]................. 25 Outar v. CNY, 5 NY3d 731 [2005]............................... 19 People v. Robinson, 88 NY2d 1001 [1996]....................... 37 vi Perez v. NYC Partnership Hous. Dev. Fund Co., Inc., 55 AD3d 419 [1st Dept. 2008] ................................. 40 Pichardo v. Aurora Contractors, Inc., 29 AD3d 879 [2d Dept. 2006] ......................................... 49, 50 Quattroucchi v. F. J. Sciame Constr. Corp., 11 NY3d 757 [2008] ...................................... 14, 19 Quigley v. Thatcher, 207 NY 66 [1912]......................... 18 Ramos v. PA, 306 AD2d 147 [1st Dept. 2003] .................... 42 Recovery Consultants, Inc. v. Shih-Hsieh, 141 AD2d 272 [1st Dept., 1988] ............................................ 38 Rentways, Inc. v. O'Neill Milk, 308 NY 342 [1955]............. 36 Ross v. Curtis-Palmer, 81 NY2d 484 [1993]..................... 27 Runner v. New York Stock Exchange, 13 NY3d 599 [2009]..... passim Rzymski v. Metropolitan Tower Life Ins. Co., 94 AD3d 629 [1st Dept. 2012] ............................. 20, 21 Salazar v. Novolex, 18 NY3d 134 [2011]........................ 28 Salinas v. Barney Skanska Constr. Co., 2 AD3d 619 [2d Dept. 2003] ............................................. 25 Salino v. Cimino, 1 NY3d 166 [2003]........................... 37 In Re: Shannon, 70 NY2d 458 [1987]............................ 36 Sherman v. Babylon Recycling Center, 218 AD2d 631 [1st Dept. 1995], appeal dismissed, 87 NY2d 895 [1995] ....... 22 Sung Kyu-To v. Triangle Equities, LLC, 84 AD3d 1058 [2d Dept. 2011] ............................................. 25 Telaro v. Telaro, 25 NY2d 433, 306 NYS2d 920, 255 N.E.2d 158 [1969] ....................................... 37 Tylutki v. Tishman Technologies, 7 AD3d 696 [2d Dept. 2004] ......................................... 23, 27 Tzic v. Kasampas, 93 AD3d 438 [1st Dept. 2012] ................ 53 Urias v. Orange County Agric. Socy., 7 AD3d 515 [2004]........ 49 vii Vasquez v. Urbahn Assoc., Inc., 79 AD3d 493 [1st Dept. 2010] ............................................. 41 Weingarten v. Windsor Owners Corp., 5 AD3d 674 [2004]......... 49 Wescott v. Shear, 161 AD2d 925 [3d Dept. 1990]................ 42 Wilinski v. 334 E. 92 Housing, 18 NY3d 1 [2011].............. 27 Wilson v. Galicia Contracting & Restoration Corp., 10 NY3d 827 [2008] ...................................... 36, 37 Zimmer v. Chemung, 65 NY2d 513 [1985}..................... 44, 49 State Statutes CPLR 3215[f].................................................. 36 Labor Law §200............................................ 12, 15 Labor Law §240................................................ 18 Labor Law §240[1]......................................... passim Labor Law §241[6]......................................... 12, 15 1 COURT OF APPEALS - STATE OF NEW YORK ---------------------------------------X RICHARD FABRIZI, Plaintiff-Respondent, PLAINTIFF- -against- RESPONDENT’S BRIEF 1095 AVENUE OF THE AMERICAS, LLC J.T. MAGEN CONSTRUCTION COMPANY, INC. and DECHERT, LLP, Defendants-Appellants, -and- VERIZON NEW YORK, INC., and TISHMAN CONSTRUCTION CORPORATION, Defendants. ---------------------------------------X NY-1095 AVENUE OF THE AMERICAS, LLC s/h/a 1095 AVENUE OF THE AMERICAS, LLC, Third-Party Plaintiff, -against- DECHERT, LLP, Third-Party Defendant. ---------------------------------------X PRELIMINARY STATEMENT Plaintiff-Respondent Richard Fabrizi [hereinafter the “plaintiff”] submits this brief in response to the appeal taken by leave of the Appellate Division, First Department [8931] from an Order of that court dated September 18, 2012 [894-926] which modified an order of the Supreme Court, New York County 1 Numbers in parentheses refer to pages of the record on appeal. 2 [Goodman, J.], dated June 10, 2011 [9-24], which denied that branch of defendants-appellants 1095 Avenue of the Americas LLC, JT Magen Construction Company, Inc., and Dechert LLP’s [“defendants”], motion for summary judgment seeking to dismiss plaintiffs’ Labor Law §240[1] cause of action and granted the plaintiff’s cross motion for partial summary judgment on the issue of liability pursuant to Labor Law §240[1], by denying plaintiff’s cross-motion and otherwise affirming the trial Court’s order. In granting leave to appeal to this Court, the Appellate Division certified the following question: “Was the order of the Supreme Court, as modified by the [sic] this Court, properly made?” [893] It is respectfully submitted that the certified question should be answered in the negative. Although the First Department was correct in denying defendants’ motion for summary judgment, the court erred in denying plaintiff’s cross-motion for partial summary judgment as to liability on the Labor Law §240[1] claim. BRIEF STATEMENT OF THE CASE On March 20, 2008, the plaintiff, an electrician employed by second third-party defendant Forest Electric Corp [“Forest”], was relocating a pool pencil box on the 11th floor of a building located at 1095 6th Avenue in Manhattan [242, 251]. The project 3 involved a “gut and remodel” of the building [331]. The “pool” box [which was also called a “pencil” box], was a device used to access telecommunication wires; it was connected to a section of conduit piping running down from the ceiling, as well as one running up from the floor. Moving some pool boxes was necessary to accommodate other riser conduits, as the initial core cuts, or holes in the floor which allowed the conduits to run up through the building, were insufficient and incorrectly placed [468-69]. The conduits were connected to both the top and bottom of the pencil box; the pencil box was secured in place by a support system known as “Kindorf supports”. After cutting the conduit pipe to remove the pencil box, the plaintiff kneeled down to place a new core cut in the floor, in order to reposition the conduit and the pencil box, and to allow space for the Kindorf support to run through the floor [275-76]. The piece of conduit pipe, which hung above plaintiff as he worked with the hammer drill, was approximately 4 inches in diameter and 8 to 10 feet long [326, 456]. The conduit was made out of galvanized steel, and weighed between 60 and 80 pounds [272, 456-57]. The conduit was attached to another piece of pipe by a compression coupling at the ceiling. The plaintiff testified that in his experience as an electrician, compression couplings 4 are less secure and more dangerous than set screw coupling [256- 57]. Although plaintiff and his partner asked for set screw couplings, so that they would be safer at the site as they worked on the pipes, none were made available to them [257]. As he worked underneath the conduit pipe, which was suspended only by the compression coupling, it fell on his hand, crushing the bones in his thumb and severing his tendon [64]. The plaintiff commenced this action against the defendants by filing an amended summons and verified complaint dated August 6, 2008 seeking to recover damages for personal injuries based on, inter alia, defendants’ violation of Labor Law 240[1] [41- 60]. Issue was joined with service of the defendants’ verified answers which denied the material allegations of complaint and asserted various affirmative defenses [71-84, 85-97]. COUNTERSTATEMENT OF FACTS A. Pre-trial Deposition Testimony of the Plaintiff The plaintiff testified that he had been working at the site since January 2008; for the two to three months before his accident, Forest had been overhauling the building’s electrical system [244]. At the time of his accident, the plaintiff was working on the 11th floor and had been engaged in “Telephone riser, conduit work” [249, 250]. A day or two after the plaintiff had completed the conduit work on the 11th floor a 5 change order was issued [250]. The change order was given on the day the incident occurred and was intended to “alter the work that had been done already” [250]. The change order pertained to the “pencil box” which connected the two conduits between floors [250]. There were “core drill core holes” next to the work that had been completed [250]. Mazzeo Electric had drilled the holes [250]. Core drilling involved taking a drill with a “core drilling bit” and drilling a round hole through the concrete [251]. Mazzeo had previously drilled the holes “to run in our conduit” [251]. Another “unit” had been running a conduit next to the area where plaintiff was working, but “they weren’t able to because they were sitting in our pencil box” [251]. The other company’s pipe was hitting Forest’s pencil box and the plaintiff “had to move [the] [pencil box] over to the left” [251]. As a consequence, the change order had been placed [251]. The conduit was newly installed as part of the gut remodel not part of the existing structure [331]. The conduit and compression coupling were installed by Forest Electric [332]. The plaintiff was provided with 4” compression couplings, which were made for installing the conduit [255]. There were two threaded objects at both ends of the couplings which were screwed tight [255]. 6 The plaintiff had also used another type of device called “set screw coupling” [256], which served the same purpose, but was “much more secure and much more safer when dealing with any kind of heavy loads” [256]. The set screw coupling had two screws on both sides; it did not have threads [257]. The conduit was placed between screws, which were in turn cranked down with a ratchet or screwdriver, or any other kind of tightening mechanism [257]. The screw applied pressure to the conduit and locked it firmly in place [257]. At the time of the plaintiff’s accident, he and his partner had only been provided with compression couplings [257]. The plaintiff did not know why compression couplings were being used. In fact, he had asked for set screw couplings a week before his accident when he spoke to his supervisor, Mike Geraci [257-8, 334-5, 357]. Mr. Geraci told plaintiff that he would see what he could do with regard to obtaining screw couplings for the site work [258]. Unfortunately, same were never made available to the plaintiff and his co-workers [258]. Had the plaintiff been provided with set screw couplings, the conduit pipe would have been adequately secured and “probably never would have fell” [259]. The plaintiff and his partner, Thomas DeAngelis had both agreed prior to the subject accident that set screw couplings were far safer and would have prevented the accident [259-260]. 7 Plaintiff had received training in moving pencil boxes 4 or 5 times before the incident [269]. The plaintiff’s partner was much more experienced; Thomas had been in the business for close to 30 years while the plaintiff had been engaged in this type of work for 8 or 9 years [268]. The plaintiff identified a picture of the conduit pipe which had been in the compression coupling [262-63]. The compression coupling had been attached to another piece of pipe and on top of that pipe was the pencil box [264]. A punch, or cut out was on top of the pencil box and compression connector [264-65]. The entire structure had been completed by Forest before the change order had been issued; it had to be moved after the change order was given [266]. The plaintiff’s accident occurred while he was in the process of moving the pencil box [267]. Prior to the accident plaintiff disconnected the connectors from the conduit via the pencil box [268-69]. The plaintiff made 2 horizontal cuts in the conduit at both ends of the pencil box with a cutting device called a “Saw Zall” and removed the pencil box: Q. So when you were removing the pencil box, were you repositioning it left or right or up or down? A. Left to right. Q. The kinderoff is supporting the pencil box, as you can see in Picture A, four holes, but the kinderoff would support the box, indicated in Defendant’s Exhibit A? 8 A. That’s the bottom of the box and there are two holes on top. We took those bolts out, removed the box and when I had to drill new supports for the kinderoff for the box and in the process of drilling the holes, the piece of conduit fell on my right hand. [270-271] The part of the conduit that fell on the plaintiff was connected to the coupling in the ceiling and the connector had been connected to the box [271]. When the plaintiff cut the conduit and moved the pencil box, the conduit was unsupported at the bottom, but was still attached to the compression coupling in the ceiling [271]. The 10-foot piece of conduit weighed anywhere from 60 to 80 pounds [272]. The method of moving the pencil box by cutting the midsection of the conduit and leaving a top and bottom conduit, as described by Mr. Fabrizi was “standard operation” - there was nothing particularly unusual or out of the ordinary about this work [272-273]. The compression coupling’s screws were intended to lock the conduit in place [273]. The plaintiff did not know who tightened the compression coupling at issue before his accident [273]. The plaintiff was not involved in the pencil box’s installation prior to the issuance of the change order [273]. When the pipe fell on him, the plaintiff was drilling new holes in the floor for the Kindorf supports [275]. He was using a hammer drill to reposition the Kindorf supports [276]. The 9 Kindorf supports had to be moved to a different point in the floor and secured [275]. Before the conduit pipe fell on him plaintiff was on his left knee and drilling with his right hand to reposition the Kindorf supports [276]. The conduit pipe fell about 20 minutes after the Kindorf supports had been removed [326-27]. The conduit pipe struck his right hand, right above his knuckle [276]. Plaintiff was taken to Bellevue Hospital within an hour after his accident [277]. The work that plaintiff was doing on the day of his accident was necessary as a result of the change order that had been issued with respect to the risers [325]. The change order was given because core holes drilled to run piping kept striking the pencil boxes during the construction process [325]. The pencil box therefore had to be shifted to permit completion of the work and ensure the proper functioning of the electrical system [326]. The plaintiff had worked on 4 or 5 previous jobs where he left a piece of conduit hanging vertically [327]. On those prior occasions, the conduit pipe was left hanging for about 15 to 20 minutes before the team was able to gather the materials to reconstruct the support; “It was an old practice” [327]. Based on the plaintiff’s training as an electrician, there was 10 no minimum amount of time for leaving a piece of conduit hanging on a job site [327-28]. Forest installed the compression coupling [332]. The plaintiff did not know why the conduit slipped loose from the coupling [332]. The defendants’ attorney produced a statement from the plaintiff’s partner, Thomas DeAngelis, who stated that it was his expert opinion that had he and plaintiff been provided with a set screw coupling, they would have been able to adequately and safely secure the conduit pipe [349]. Mr. DeAnglis further stated that while they were told by the engineer to use compression couplings, workers on the rest of the project used set screw couplings to secure construction items [349]. B. Pre-trial Deposition Testimony of Chris Porcello Mr. Porcello, the project superintendent for defendant J.T. Magen, the project’s general contractor [438-39, 447], testified that Forest was responsible for all electrical aspects of the job; this included providing the data conduit runs from the sub- cellar through Dechert’s floors [455-56]. The conduit, which was 4” galvanized steel, had to be run through core cuts; some core cuts had been provided by the building while new ones had to be installed from scratch [457]. New core cuts had to be made because pull boxes hampered or retarded the way of running the conduit [457]. Pencil boxes 11 were devices that separated two conduits, which came together when workers pulled data lines or electrical wires together in the process of installing telecommunication systems in buildings [457-58, 461]. The conduit on which plaintiff was working was in the data shaftway [461-62]. A coupling was used to keep the conduit together [464-65]. While Mr. Porcello had heard of “screw type couplings”, he never heard of compression couplings [465]. The coupling was tightened around the two pipes [465-66]. The outside of the coupling was tightened and squeezed onto the conduit [466]. Mr. Porcello could not recall exactly what kinds of couplings were used for the data run conduit at the job site [466]. Doug Bader, one of J.T. Magen’s project superintendents, was responsible for this aspect of the job [449, 466-67]. Mr. Bader did the actual walkthroughs of the shaftway where the conduit on which the plaintiff was working was run [468]. The walkthroughs were done “quite often” because “The allocations of the holes provided by the building were not correct” [468]. In addition to not having enough holes, the holes were not in the right place [468]. As a consequence, the pipe had to be rerouted and new cores had to be made [468-69]. This problem was noticed on the first walkthrough, which occurred in 2007 [469]. The 4” conduit had not been run from 12 the sub-cellar to any level of the building when the first walk through took place in 2007 [469]. When the plaintiff’s accident occurred on March 20, 2008, the 4” conduit had been run from the sub-cellar to the floors above [470-71]. Mr. Porcello did not “have the general knowledge of what exactly...[the plaintiff] was told to do” as “Mr. Bader was responsible for this part of the job” [473]. Mr. Porcello had never been responsible for vertical conduit risers on any prior job [473]. C. The Defendants’ Motion for Summary Judgment By notice of motion dated August 13, 2010, defendants moved for summary judgment granting dismissal of the plaintiff’s complaint [27-40]2. Defendants argued that the plaintiff’s Labor Law §240[1] cause of action should be dismissed because his accident was not gravity related and the plaintiff was not in the process of hoisting or securing the conduit pipe when it fell and crushed his right hand [37-38]. The defendants, however, did not argue that the Labor Law §240[1] claim should be dismissed because plaintiff’s misuse was the “sole proximate cause” of his accident. Nor did the defendant argue that they were only required to provide protection against foreseeable gravity-related risks. These two 2 While the defendants moved to dismiss the plaintiff’s Labor Law §§200 and 241[6] causes of action, the only issue relevant on this appeal is the cognizability of plaintiff’s Labor Law §240[1] cause of action. 13 claims were raised for the first time in defendants’ appellate brief. D. Plaintiff’s Cross Motion By notice of cross motion dated October 14, 2010, plaintiff cross-moved for partial summary judgment on the issue of liability pursuant to Labor Law §240[1] [514-525]. Plaintiff argued that there was no question that this matter fell squarely within the ambit of the statute. At the time of his accident, plaintiff was constructing a conduit riser; therefore, his activity constituted the alteration of a structure under section 240[1] [522]. Moreover, plaintiff was struck by a falling object [a 10’ section of 4” galvanized steel conduit], which was inadequately secured by means of a compression coupling [523- 24]. In addition to not having an adequate set screw coupling [as opposed to an inadequate and unsafe compression coupling], plaintiff argued that there should have been Kindorf support halfway between the floor and ceiling attached to the conduit to prevent it from falling [524]. As the evidence established that defendants failed to ensure that the conduit was properly secured and because it fell on the plaintiff’s hand as the result of a gravity-related risk, plaintiff asserted that he was entitled to summary judgment on his 240[1] cause of action [524]. 14 E. Defendants’ Opposition In opposition to plaintiff’s cross motion [879-885], defendants argued that the plaintiffs’ Labor Law §240[1] cause of action should be dismissed because his work and eventual accident did not involve a gravity related risk [881]. Defendants maintained that nothing was being hoisted or secured at the time of the plaintiff’s accident and that no safety devices enumerated under section 240[1] could have prevented the accident in any event [882].3 F. The Plaintiff’s Reply In reply, plaintiff posited that defendants’ narrow interpretation of Labor Law §240[1] was contrary to this Court’s decision in Quattroucchi v. F. J. Sciame Constr. Corp., 11 NY3d 757 [2008], which held that section 240[1] was not limited to cases in which the falling object was being hoisted or secured [887]. In addition, plaintiff noted that in Runner v. New York Stock Exchange, 13 NY3d 599 [2009], this Court held that in determining the applicability of the statute, the relevant inquiry was whether the harm flowed directly from the application of the force of gravity to the object that fell [887]. Because the steel conduit fell as a result of the inadequate coupling, plaintiff had established a violation of §240[1] as a matter of law [887-88]. 3 This Court has rejected that very argument. See, Zimmer v. Chemung Co., 65 NY2d 513 [1955]. 15 G. The Trial Court’s Decision and Order In a decision and order dated June 6, 2011, the Supreme Court, New York County [Goodman, J.], denied defendants’ motion for summary judgment4 [7-26]. The court held that the plaintiff was subject to an elevation related risk as the conduit was hanging several feet above him, and its 60-80 pounds was capable of generating a great deal of force in its descent towards the plaintiff’s hand [18-19]. Because the conduit was disconnected from the Kindorf support and only attached to the ceiling by a compression coupling, and because it fell as a result of the effects of gravity, the court determined that it was not secured properly and that it did not afford plaintiff the protection to which he was entitled under the statute [19]. Since the defendants failed to raise a triable issue of fact in opposition, the trial court denied their motion for summary judgment and granted the plaintiff’s motion for partial summary judgment on the issue of liability pursuant to section 240[1]. H. Appeal to the First Department The Appellate Division, First Department modified the trial court’s order by denying plaintiff’s cross-motion and holding that neither party demonstrated that they were entitled to summary judgment as a matter of law - “finding an issue of fact 4 The court granted those branches of the defendants’ motion for summary judgment dismissing the plaintiff’s Labor Law §§200 and 241[6] causes of action. These issues are not relevant to the defendants’ appeal before this Court. 16 as to whether defendants failed to provide a protective device” [896]. As we will discuss below, while we agree that the First Department properly denied defendants’ motion for summary judgment, we believe that the court erred in modifying that part of the trial court’s order which granted plaintiff’s cross- motion for partial summary judgment on the Labor Law §240[1] claim. The First Department’s holding that an issue of fact existed as to whether defendants failed to provide a protective device of the kind required by the statute is simply unsupportable on this record. This Court should modify the First Department’s order and grant plaintiff’s cross-motion because plaintiff testified that before he cut the conduit pipe in order to move the pencil box, he requested a set screw coupling to secure the conduit pipe to prevent it from falling [258-259] and that the failure to provide this safety device was a proximate cause of the accident. 17 ARGUMENT POINT I DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE THE PLAINTIFF HAS COGNIZABLE §240[1] CLAIM; IN FACT, PLAINTIFF IS ENTITLED TO PARTIAL SUMMARY JUDGMENT BECAUSE THE PROTECTIVE DEVICE PROVIDED TO HIM AT THE SITE PROVED INADEQUATE TO SHIELD HIM FROM HARM DIRECTLY FLOWING FROM THE APPLICATION OF THE FORCE OF GRAVITY TO THE CONDUIT PIPE Defendants contend on appeal that the circumstances giving rise to plaintiff’s injuries are outside the scope of Labor Law §240[1] because the accident was not caused by the inadequacy or absence of a protective device of the kind enumerated in Labor Law §240[1]. [Brief at p. 11] This argument is erroneous and without merit. Contrary to defendants’ assertions, the falling of the conduit pipe due to the failure of the compression clamp to hold it securely in place is precisely the sort of “extraordinary” and foreseeable elevation-related risk for which the Labor Law was enacted. See, Runner, supra [the “single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential”]. A. Labor Law §240[1] in General Section 240[1] of the Labor Law imposes a non-delegable duty upon owners, contractors, and their agents to provide workers engaged in certain enumerated activities with proper 18 protection during the course of construction, demolition and renovation projects. Supervision, control, and lack of negligence are not defenses to liability under the statute. See, Long v. Forest-Fehlhaber, 55 NY2d 154 [1982]; Haimes v. New York Tel. Co., 46 NY2d 132 [1978]; Koenig v. Patrick Const. Corp., 298 NY 313 [1948]; Bush v. Goodyear Tire & Rubber Co., 9 AD3d 252, 253 [1st Dept. 2004] [Tenant may be liable as an “owner”]. In furtherance of this legislative goal, the Labor Law is construed liberally in favor of protecting worker safety. As expressed by this Court in Zimmer: We gave early recognition to this legislative intent when we declared with respect to section 240, which was then substantially in its present form, that this statute is one for the protection of workmen from injury and undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed. Id., at 520-21; see also, Bland v. Manocherian, 66 NY2d 452, 459 [1985] [Labor Law §240 is “to be construed as liberally as may be for the accomplishment of the purpose for which [it was] thus framed”]. See also, Quigley v. Thatcher, 207 NY 66 [1912]. Indeed, this Court has long recognized that construction workers such as plaintiff are “scarcely in a position to protect themselves from accidents.” See, Koenig v. Patrick, 298 NY 313, 318 [1948]. 19 B. Falling Objects Defendants’ liability in this case is based on a “falling object” theory of liability because the force of gravity which was generated by the weight of the galvanized steel conduit pipe required that the pipe be sufficiently controlled or secured from falling. See, Runner, supra; Naughton v. City of New York, 94 AD3d 1 [1st Dept. 2012] [“In addition to ‘falling worker’ cases, Labor Law §240[1] applies where a plaintiff is struck by a falling object that was improperly hoisted or inadequately secured”]. This Court in Outar v. CNY, 5 NY3d 731 [2005] made it clear that “falling object” liability under Labor Law §240[1] is not limited to cases in which the falling object was actively being hoisted or secured at the time that it fell. Likewise, in Quattrocchi v. F.J. Sciame Constr. Corp., 11 NY3d 757 [2008], this Court cited to its earlier decision in Outar, and held again that “falling object” liability under the scaffolding law is not limited to cases in which the falling object is in process of being hoisted or secured. In Runner, the plaintiff was injured while he was lowering an object capable of generating significant force due to its weight. The worker was holding a line wrapped around a bar and connected to a heavy reel while in the process of lowering the 20 reel. This makeshift mechanism failed and the weight of the reel, as it fell, dragged the worker into the bar, injuring him. This Court found that although no object actually fell on the plaintiff, that did not end the inquiry because the force of gravity which was generated by the weight of the reel required that the reel be sufficiently controlled as it was lowered, and that the ad hoc mechanism provided was insufficient and caused the accident. As such, this Court held that “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”. Runner, 13 NY3d at 604. Critical to this Court’s decision was its finding that because the loss of control of the reel’s descent caused the injury to the plaintiff, the position of the plaintiff relative to the reel was not dispositive. It was the failure of the mechanism being used to control the object’s descent that caused the worker’s injury, thus triggering the protections of Labor Law §240[1]. Recently in Rzymski v. Metropolitan Tower Life Ins. Co., 94 AD3d 629 [1st Dept. 2012], the plaintiff sustained severe personal injuries when a 20-foot long 250 pound steel pipe he was installing came loose from one end and struck him on the 21 head, causing him to fall from a ladder. The trial court granted plaintiff’s motion for partial summary judgment; on appeal, the First Department affirmed: Under these circumstances, the motion court correctly granted plaintiff’s motion for partial summary judgment on his cause of action pursuant to Labor Law §240[1]. Plaintiff established his entitlement to judgment as a matter of law by demonstrating that his claims encompass both a falling object and a fall from an elevation due to inadequate safety devices [cits]. Defendants failed to raise an issue of fact in opposition to the motion. 94 AD3d at 629. In Henningham v. Highbridge Community Housing Development Fund Corp., 91 AD3d 521 [1st Dept. 2012], plaintiff sustained severe personal injuries when he was struck in the head by broken cinder blocks that were thrown down a hard plastic chute. At the time of the accident, plaintiff was told to go to the second floor to try to clear up a clog in the chute; plaintiff leaned slightly outside the window frame, and unclogged the chute by poking at the debris. Shortly after telling his coworkers that the chute was clear, plaintiff was struck on the back of the head by a cinder block. In affirming the grant of partial summary judgment to the plaintiff, the First Department held that Labor Law §240[1] applied to plaintiff’s accident because a “falling object” case is “not limited to cases in which the falling object is in the 22 process of being hoisted or secured”. In so holding, the Court reasoned that defendants failed to raise an issue of fact whether plaintiff had an adequate safety device available [cite]. If the debris chute had been functioning properly, it would not have become clogged, plaintiff would not have been sent to unclog it, and he would not have been injured. Since plaintiff’s accident was caused, at least in part, by defendants’ failure to provide an adequate safety device, plaintiff’s alleged act of placing his head and upper body inside the chute could not have been the sole proximate cause of the accident [cite]. 91 AD3d at 522. Likewise, in our case, if the compression coupling had functioned properly, the conduit pipe would not have come loose and fallen and plaintiff would not have been injured. As we will discuss infra, since plaintiff’s accident was caused by defendants’ failure to provide an adequate safety device, plaintiff’s conduct could not have been the “sole” proximate cause of this accident as a matter of law. Blake v. Neighborhood Housing, 1 NY3d 280 [2003]. In Sherman v. Babylon Recycling Center, 218 AD2d 631 [1st Dept. 1995], appeal dismissed, 87 NY2d 895 [1995], the plaintiff was injured by a ten foot long steel beam which had been left in an unsecured position parallel to the ground and elevated by two eight foot tall vertical beams. The court held that this presented an obvious and patent danger that the beam would fall on someone if left unsecured, and which clearly fell within the contemplated hazards of section 240[1]. 23 In Cammon v. City of New York, 21 AD3d 196 [1st Dept. 2005], the court held that Labor Law §240[1] was applicable when an unsecured piece of timber plaintiff was cutting above his head fell and struck him, resulting in personal injuries. In Tylutki v. Tishman Technologies, 7 AD3d 696 [2d Dept. 2004], plaintiff was struck and injured by a falling piece of sprinkler pipe that had been dislodged by a co-worker when he hit a section of the pipe with a hammer causing the pipe to fall striking the plaintiff in the face. The record showed that no protective device designed to catch the falling pieces of pipe was utilized in connection with the work. In unanimously affirming the grant of partial summary judgment on the Labor Law §240[1] claim, the court held that the plaintiff was exposed to a gravity-related hazard within the meaning of Labor Law §240[1] and entitled to judgment as a matter of law because the absence of a safety device of the kind enumerated in the statute proximately caused plaintiff’s injury. Runner, Outar and Quattrocchi, are consistent with a prior decision of the First Department in Bush v. Gregory/Madison Avenue, LLC, 308 AD2d 360 [1st Dept. 2003] in which the plaintiff ironworker was struck by an inadequately secured angle iron that fell. The Bush record on appeal reveals that the angle iron in question was between six and ten feet long and had previously been set by the raising gang, but had not yet been secured with 24 additional anchor bolts [Bush 65, 68-70, 1325]. In affirming the order of the trial court, which had denied defendant’s motion for summary judgment, the First Department held: Summary judgment dismissing plaintiffs’ Labor Law §240[1] cause of action was properly denied inasmuch as the record discloses the existence of triable issues of fact respecting whether a statutorily enumerated protective device would have been “necessary or expected” to shield plaintiff, an ironworker, from the improperly secured angle iron that struck him as it fell from the floor above his work site. Bush is also conceptually indistinguishable from a number of decisions from each of the intermediate Appellate Divisions, holding that Labor Law §240[1] requires that during construction work, owners and contractors must furnish devices necessary to secure a load or materials to prevent them from falling on a worker. See, Gabrus v. New York City Housing Authority, 105 AD3d 699 [2d Dept. 2013] [“the plaintiff established his prima facie entitlement to judgment as a matter of law under Labor Law §240[1] by demonstrating that the load of material hoisted to the top of the six-story building was inadequately secured, and that the load fell on him, causing his injuries.”]; Andresky v. Wenger Const. Co., Inc., 95 AD3d 1247 [2d Dept. 2012] [“the plaintiff established, prima facie, that the container of concrete constituted a load that required securing and that the defendant’s failure to use an appropriate safety device to 5 These pages refer to the record on appeal in the Bush appeal. 25 secure it was a proximate cause of his injury”]; Sung Kyu-To v. Triangle Equities, LLC, 84 AD3d 1058 [2d Dept. 2011] [jury could have reasonably determined that Labor Law §240[1] was violated because demolition debris that was thrown off a building “presented a significant risk of injury such that the defendants were obligated under Labor Law §240[1] to use appropriate safety devices to secure the material that fell”]; Landgraff v. 1579 Bronx River Avenue, LLC, 18 AD3d 385 [1st Dept. 2005]; Malloy v. Madison Forty-Five Co., 13 AD3d 385 [1st Dept. 2004]; Salinas v. Barney Skanska Constr. Co., 2 AD3d 619 [2d Dept. 2003]. Likewise, the accident here is precisely the sort of accident, which is protected by Labor Law §240[1]. There is no dispute that plaintiff was injured as a result of the application of the force of gravity on a 60-80 pound conduit pipe. Moreover, it is uncontested on this record that the defendants failed to provide the plaintiff with an adequate safety device to prevent the conduit pipe from falling on his right hand.6 The conduit pipe was attached to the ceiling by a compression coupling, a device which plaintiff testified was less secure than a set screw coupling; he and a co-worker 6 To obtain summary judgment, a plaintiff must establish that a device of the type enumerated in the statute, which could have prevented the accident, was inadequate or unavailable. See, Ortiz v. Varsity Holdings, 18 NY3d 335, 340 [2011]. Here, plaintiff proved that the coupling was inadequate to secure the pipe and that a safer type of coupling was available whose use would have prevented the accident. 26 specifically requested set screw coupling because it was safer. In the motion papers below, the defendants did not offer any evidence or testimony to dispute this assertion. The fact that the compression coupling failed causing the pipe to fall and crush the plaintiff’s right hand established as a matter of law that the pipe was not adequately secured to provide the plaintiff with the proper projection. See, Gordon v. Eastern Rwy., 82 NY2d 555, 561 [1993] (statute violated where devices provided did not fulfill the “core objective” of the statute); Harris v. City of New York, 83 AD3d 104 [1st Dept. 2011] [rejecting defendant’s argument that proper protection was provided because none of the safety devices failed; instead, the Court held that partial summary judgment was warranted because there was no safety device to guard against the risk of a concrete slab’s unregulated speedy descent, and further, that the unregulated descent of the slab resulted in the plaintiff’s injuries]. Where the undisputed proof establishes that the object which struck plaintiff had not been properly secured, plaintiff should be afforded summary judgment under Labor Law §240[1] [see, e.g., Hawkins v. City of New York, 275 AD2d 634 [1st Dept. 2000] [one end of 30-foot-long beam fell, causing other end to pin plaintiff against wall]; Costa v. Piermont Plaza Realty, Inc., 10 AD3d 442 [2d Dept. 2004] [cement mason working on third 27 floor struck by steel beam on roof that was struck by boom of cement truck].7 Thus, we respectfully submit that the plaintiff met his burden for summary judgment establishing as a matter of law that he was not afforded proper protection. This constitutes a Labor Law §240[1] violation (Tylutki, supra) and this Court should modify the First Department’s order and grant plaintiffs’ cross- motion for partial summary judgment as to liability. C. The Compression Coupling is an “Enumerated” Device Defendants argue on appeal that plaintiff’s injury was not caused by the inadequacy or absence of a protective device “of the kind” enumerated in Labor Law §240[1]. [Brief at pp. 11, 16]8 This argument refutes itself, as the compression coupling clamp was supposed to secure the conduit pipe that fell and struck plaintiff. Indeed, this Court has long held that §240[1] is designed to “prevent these types of accidents” in which the “protective device” proves “inadequate to shield the worker from harm directly flowing from the force of gravity” (Ross v. Curtis- Palmer, 81 NY2d 484, 500 [1993]). In Brown v. VJB Const. Corp., 50 AD3d 373 [1st Dept. 2008], plaintiff sustained severe personal injuries when a 1,000 pound 7 Of course, not every falling object case may be summarily resolved. See, Wilinski v. 334 E. 92 Housing, 18 NY3d 1 [2011]. 8 See, Ortiz v. Varsity Holding, supra; Narducci v. Manhasset Bay Assoc., 96 NY2d 289 [2001]. 28 granite slab that fell while being hoisted, struck the ground and tilted over, pinning plaintiff’s right wrist between the stone panel and the wall. Plaintiff claimed that his accident was caused by the failure of a clamp that was used to secure the granite slab. In affirming partial summary judgment to the plaintiff on the Labor Law §240[1] claim, the First Department rejected defendant’s argument that the Labor Law requires a “substantial” elevation differential. More importantly, the First Department also held that the accident occurred as a result of the failure of the clamp: The relevant facts are that a slab of granite measuring four by three feet and weighing 1000 pounds had to be hoisted three feet above grade in order to transport it, and that the accident occurred while it was hoisted in the air due to the effects of gravity and the defective clamp [cite]. Undisputed evidence demonstrates that the clamp clearly failed in its core objective of preventing the object from falling because the slab, in fact, fell, injuring plaintiff. 50 AD3d at 377. There was no discussion in that case regarding whether the clamp was an enumerated device. See also, Ewing v. ADF Const. Corp., 16 AD3d 1085 [4th Dept. 2005] [failure of C- clamp warranted partial summary judgment to plaintiff because “that device did not provide plaintiff with proper protection as a matter of law.”]9 9 The couplings can be classified as a “brace”, “iron” or “sling” under the statute, whose listing is not exhaustive as it expressly includes “other devices.” See, Salazar v. Novolex, 18 NY3d 134 [2011]. 29 It is clear that the compression coupling failed to perform as intended and did not serve its core objective under Labor Law §240[1] of preventing the conduit pipe from coming loose and falling onto plaintiff’s hand. Thus, there is no merit to defendants’ argument that the compression coupling was not a device of the kind prescribed by the statute. Nor is there any merit to defendants’ claim that Labor Law §240[1] was not implicated because the compression coupling was installed more than a week before his accident and was not a safety device installed “for the purpose of protecting workers who were performing a gravity-related task.” [Brief at p. 17] The timing of when the compression coupling was installed is simply not dispositive in determining whether the defendants have violated Labor Law §240[1]; what is important is that it failed to provide proper protection to the plaintiff. Equally important, there is no requirement [and defendants have cited no case law to support the argument] that plaintiffs have to show that the compression coupling was installed expressly for the purpose of protecting workers before Labor Law §240[1]’s “falling object” liability can be triggered. The only relevant inquiry is “whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation 30 differential”. Runner, 13 NY3d at 603. See also, Wilinski, supra. Put another way, there is no indication in Misseritti v. Mark IV Constr. Co., supra; Narducci v. Manhasset Bay Assoc., supra, Runner or Wilinski that this Court intended to impose a blanket rule that for Labor Law §240[1] liability to apply, a device which fails to provide proper protection must have been intended by the owner or contractor to protect workers who were performing a gravity related task. According to the defendants, any other device that fails, including a clamp or hoist which is used to secure materials or equipment but which is not intended to shield a worker from an elevation-related danger, may not serve as a predicate for Labor Law §240[1] liability. This Court should reject defendants’ narrow interpretation as without merit and contrary to the Legislature’s intent. Likewise, defendants’ attempt to analogize the compression coupling device to the planks that were not installed to secure the concrete firewall which fell in Misseritti v. Mark IV Constr. Co., 86 NY2d 487 [1995] is erroneous. In Misseritti, the plaintiff’s decedent sustained severe personal injuries when a completed, concrete firewall collapsed on top of him. Before it collapsed, “decedent and his co-worker had just dismantled the scaffolding used to erect the completed fire wall and... 31 [m]asons had not yet vertically braced the wall with the... planks it had on the work site”. Id. at 491. This Court held that section 240[1] did not apply to those facts, as the firewall did not collapse due to a failure to provide a protective device contemplated by the statute. Id. This Court reasoned that the kind of braces referred to in section 240[1] are “those used to support elevated work sites not braces designed to shore up or lend support to a completed structure”. Thus the firewall’s collapse, though tragic in its consequences, was simply “the type of peril a construction worker usually encounters on the job site”. Id. Contrary to defendants’ contention, Misseritti did not turn on the fact that the object which struck the plaintiff was put in place to lend support a completed structure. Rather, just as in Narducci, the absence of a causal nexus between the worker’s injury and a lack or failure of a device prescribed by section 240[1] mandated a finding against liability. In this regard, this case is distinguishable from Misseritti in a significant way - unlike the firewall in that case, the galvanized conduit pipe here was not adequately “secured” within the meaning of Labor Law §240[1] because the compression coupling failed and set screw couplings should have been used to prevent the “special hazard” of a gravity-related 32 accident such as being struck by a falling pipe that was inadequately secured [259-260]. D. The Conduit is not Part of the Building’s Infrastructure Defendants also argue that Labor Law §240[1] is inapplicable because the galvanized pipe, like the piece of glass that fell from the window in Narducci, was part of the building’s infrastructure and therefore, the strict liability provisions of the statute were never triggered. [Brief at p. 14] In Narducci, plaintiff was working on a ladder when a large piece of glass from an adjacent window frame that was neither being hoisted nor secured fell and injured his arm. This Court held that there was no viable §240[1] claim. Defendants here posit that because the conduit pipe that fell on plaintiff was part of the pre-existing building infrastructure, plaintiff’s accident resulted from a general hazard of the workplace, much like the broken glass was in Narducci. However, this argument is premised on a misreading of Narducci. The full text of the holding in that case states: the glass that fell on plaintiff was not a material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell.... No one was working on the window from which the glass fell, nor was there any evidence that anyone worked on that window during the renovation. The glass that fell was part of the preexisting building structure as it appeared before the work began. This was not a situation where a hoisting or securing device of the kind 33 enumerated in the statute would have been necessary or even expected.” 96 NY2d at 268 [emphasis added]. In other words, the glass did not qualify as the type of falling object contemplated by the statute because it was not an integral part of the renovation/construction work undertaken by plaintiff. This is very different from the facts in our case. To the contrary, the galvanized conduit pipe that fell was not part of the building’s permanent structure but was an integral part of the electrical work because Foster Electric had just installed it as part of the construction project and it was plaintiff’s job to remove the pencil box that was attached to that conduit pipe because the placement of the box interfered with other risers: Q. Was this an old conduit or what? New installed conduit from your accident recollection? A. New conduit. Q. Was this a building being built or something that was already existing? A. I believe when I got there, the building had new windows on it. I believe it was a gut and remodel. [331] In other words, the conduit pipe does qualify as the type of falling object contemplated by the statute because it was an integral part of the renovation/construction work undertaken by plaintiff and his co-worker. Therefore, defendants’ attempt to analogize the conduit pipe to the piece of glass in Narducci fails. 34 We believe that the facts in Boyle v. 42nd St. Dev. Project, 38 AD3d 404, 405 [1st Dept. 2007] are more analogous to this case. There, the First Department, citing Outar, held that plaintiff’s accident clearly fell within the purview of the statute inasmuch as plaintiff was struck by a falling object that had been inadequately secured. In that case, threaded rods, which were not in the process of being hoisted or secured, fell from a height and injured plaintiff. The court noted that “the standard way of completing the job was to leave the nuts untightened until the placement of the stringers, threads and risers; at which point the nuts would be tightened, and thus the threaded rod would be firmly secured” [Id. at 408]. The court further explained: if the nuts were not finally tightened, then the rods which the nuts were securing were not completely “secured” within the meaning of §240[1]. Pursuant to the provisions of §240[1] they should have been completely “secured” or some safety device should have been used in the meantime to prevent the “special hazard” of a gravity-related accident such as “being struck by a falling object that was improperly hoisted or inadequately secured” [internal citations omitted]. 38 AD3d at 408. The First Department in Boyle rejected the defendant’s argument that the holding in Narducci stood for the proposition that an object must fall at the precise moment of being secured during the work process in order for the statute to apply. The court noted that the glass that fell and injured the plaintiff 35 in Narducci was actually a part of the pre-existing building structure. Thus, it was “not an integral part of the renovation/construction work undertaken by plaintiff that involved the hoisting or securing of objects”. 38 AD3d at 407. Based on the foregoing, there is no merit to defendants’ claim that the strict liability provisions of Labor Law §240[1] were not triggered and the First Department’s order should be modified because plaintiffs should have been granted partial summary judgment. POINT II ARGUMENTS REGARDING FORESEEABILITY AND SOLE PROXIMATE CAUSE ARE UNPRESERVED FOR REVIEW BY THIS COURT; IN ANY EVENT, THE RISK OF INJURY WAS FORESEEABLE FOR PURPOSES OF APPLYING THE STATUTE AND PLAINTIFF’S CONDUCT WAS NOT THE SOLE PROXIMATE CAUSE Defendants argue, for the first time on appeal, two issues, which were not raised in their initial moving papers before the nisi prius Court. At no point during the course of the motion practice below did the defendants argue that plaintiffs’ Labor Law §240[1] claim should be dismissed because plaintiffs could not demonstrate that the accident was foreseeable or that plaintiff’s conduct in removing the Kindorf support was the “sole proximate” cause of his accident. In fact, defendants admit as much in their brief at pages 33-34. This admission should end this Court’s inquiry because this Court lacks jurisdiction to hear unpreserved issues [Merrell v. 36 Albany MC, 71 NY2d 990 [1988]] or an Appellate Division’s “exercise of discretion in reaching same”. Feinberg v. Saks, 56 NY2d 200, 206 [1982]. See also, Lichtman v. Grossbard, 73 NY2d 792 [1988]; In Re: Shannon, 70 NY2d 458 [1987] [Where argument was first raised on appeal to the Appellate Division, “The issue is therefore not preserved for our review, and the appeal as of right must be dismissed”]. The preservation rule guarantees the party in opposition a chance to respond with an evidentiary showing and appropriate legal counter-steps. Stated otherwise, an appellate court “will not consider different theories or new questions, if proof might have been offered to refute or overcome them had they been presented in the court of first instance”. Rentways, Inc. v. O’Neill Milk, 308 NY 342, 349 [1955]. In Wilson v. Galicia Contracting & Restoration Corp., 10 NY3d 827 [2008], defendant Safeway attempted to argue, for the first time on appeal to this Court, that CPLR 3215[f] rendered the judgment in plaintiff’s favor a nullity. In rejecting the argument, this Court stated: As we have previously made clear, the requirement of preservation is not simply a meaningless technical barrier to review [cite]. Here, for example, had defendant earlier raised CPLR 3215[f], plaintiff might well have filed the documents referenced in that section; the affidavit or verified complaint specified in CPLR 3215[f] “need only allege enough facts to enable a court to determine that a viable cause of action exists” [cite]. Today, nearly a decade after the 37 incident, and years after dismissal of all codefendants with prejudice, the potential harm to plaintiff from reversing the consequence of Safeway’s counseled course of action is manifest. 10 NY3d at 829-830. See also, Salino v. Cimino, 1 NY3d 166, 173 [2003]; People v. Robinson, 88 NY2d 1001, 1002 [1996] [“to frame and preserve a question of law reviewable by this Court, an objection or exception must be made with sufficient specificity at the trial, when the nisi prius court has an opportunity to consider and deal with the asserted error”]]; Hapletah v. Assessor of Town of Fallsburg, 79 NY2d 244 [1992]. Likewise, this Court in Bingham v. New York City Transit Authority, 99 NY2d 355 [2003], explained, As we have many times repeated, this Court with rare exception does not review questions raised for the first time on appeal. Unlike the Appellate Division, we lack jurisdiction to review unpreserved issues in the interest of justice. A new issue - even a pure law issue - may be reached on appeal only if it could not have been avoided by factual showings or legal countersteps had it been raised below [see Telaro v. Telaro, 25 NY2d 433, 439, 306 NYS2d 920, 255 N.E.2d 158 [1969]]. 99 NY2d at 359. Stated differently, the doctrine of preservation mandates that an issue is preserved for appellate review, and thus, available as a basis for reversal or modification of an order or judgment, only if it was first raised in the nisi prius court. Sam v. Town of Rotterdam, 248 AD2d 850 [3d Dept. 1998]. See also, Huston v. County of Chenango, 258 AD 56, 60-61 [1937], 38 aff’d, 278 NY 646 [1938] [Party may not argue on appeal a theory never presented to the court of original jurisdiction]; Morales v. County of Nassau, 94 NY2d 218 [1999]; Matter of Edward B., 80 NY2d 458 [1992]; Gulf Insurance Company v. Kanen, 13 AD3d 579 [2d Dept. 2004]; Jones v. Jones, 13 AD3d 1078 [4th Dept. 2004]; Matronardi v. Mitchell, 109 AD2d 825 [2d Dept. 1985]; Recovery Consultants, Inc. v. Shih-Hsieh, 141 AD2d 272 [1st Dept., 1988]; Brent-Grand v. Megavolt Corp., 97 AD2d 783 [2d Dept. 1983]; and Emmer v. Emmer, 69 AD2d 850 [2d Dept. 1979]. In this case, the arguments raised by the defendants are unpreserved because they concede that they never raised the foreseeability argument nor the sole proximate cause argument in the initial moving papers. [Brief at p. 33-34] In addition, the First Department specifically stated in two separate footnotes in the order appealed from, that these arguments were not raised in defendants’ moving papers below: “Although, in concurring in the denial of plaintiff’s motion for summary judgment, Justice Roman focuses on the issue of foreseeability, we note that defendants did not raise that issue” [896-897]; and “Notably, defendants did not argue below that plaintiff’s actions were the sole proximate cause of the accident.” [899] Had defendants’ two new arguments been presented below, plaintiffs would have had the opportunity to make factual showings and legal arguments to counter such claims. 39 Having failed to present these two arguments in the court of original instance, this Court should not consider defendants’ belated arguments now. See, Mingo v. Pirnie, 55 NY2d 1019, 1020 [1982] [case not reviewable because issue not raised in nisi prius court even though raised in Appellate Division]. However, should this Court ignore the preservation argument and proceed with a substantive review, we submit that they are both equally without merit. A. The Risk of Injury in this Case was Foreseeable Defendants purport to establish a new framework in assessing whether an owner or contractor is liable in “falling object” cases, by demanding that this Court expressly adopt a foreseeability test “in all cases under Labor Law §240[1]”, and require a plaintiff to bear the burden of demonstrating that a particular injury was foreseeable. [Brief at p. 21] This request should be rejected as overbroad, unnecessary, and contrary to the legislative intent of the statute. The plain language of Labor Law §240(1) mandates that in the erection, demolition, repairing, altering, painting, cleaning or pointing of a “structure,” contractors and owners “shall furnish” safety devices to workers. Nowhere is there a requirement that owners and contractors have to supply safety devices only when they divine there is a foreseeable risk of injury in a particular task because of an unsecured or 40 inadequately secured object. Nor is there a distinction in the statute between a permanent structure and a temporary structure. As discussed generally above, a defendant’s failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability. Wilinski, supra; Runner, supra. Indeed, the question of foreseeability is irrelevant when safety devices are required pursuant to Labor Law §240(1), and an owner or contractor is absolutely liable in damages for injuries sustained by a covered worker based on the defendants’ failure to provide proper protection to a worker. See, Zimmer, supra; Perez v. NYC Partnership Hous. Dev. Fund Co., Inc., 55 AD3d 419, 420 [1st Dept. 2008] [“it is sufficient for purposes of liability under section 240(1) that adequate safety devices to prevent the [structure] from slipping or protecting plaintiff from falling were absent”] [internal quotation marks omitted]. Thus, contrary to the defendants’ argument, foreseeability is irrelevant in this case. To be sure, the First Department has recently created a limited exception with respect to foreseeability where the accident involves the collapse of a permanent structure such as a floor. See, Jones v. 414 Equities LLC, 57 AD3d 65 [1st Dept. 2008] [demolition worker fell when a permanent second story floor collapsed]; Espinosa v. Azure Holdings II, LP, 58 AD3d 287 [1st Dept. 2008] [plaintiff fell 41 when the sidewalk on which he was standing collapsed due to the failure of the cellar vault below it]; Vasquez v. Urbahn Assoc., Inc., 79 AD3d 493 [1st Dept. 2010] [plaintiff fell when permanent staircase collapsed during demolition of a building]. But, that is not the case here. Although the intent was to have the conduit pipe remain permanently in the building, the conduit pipe itself is not of the same nature as a floor. It is plaintiff’s position that inserting a foreseeability requirement would distort the statute, contravene accepted precedent on point and, in some instances, provide plaintiff with less protection than that afforded to injured victims in ordinary personal injury cases. Defendant’s position is thus unwise, contrary to the Legislature’s intent in enacting the statute, and contrary to decisional law on point. We note that this Court has specifically held that a plaintiff “need not demonstrate the precise manner in which the accident happened or the injuries occurred was foreseeable where the plaintiff establishes “some risk of injury from the defendant’s conduct” (Felker v. Corning, 90 NY2d 219, 225 [1997]). And, of course, appellate law is clear that plaintiff need not prove that a structure was defective in order to establish liability. That it collapsed or broke establishes a violation of the statute under the absolute liability provisions in the statute. See, Cosban v. NYCTA, 227 AD2d 160 [1st Dept. 42 1996]; Davis v. Pizzagalli Constr., 186 AD2d 960 [3d Dept. 1992]; Clute v. Ellis Hospital, 184 AD2d 942 [3d Dept. 1992]; Wescott v. Shear, 161 AD2d 925 [3d Dept. 1990]; Brass v. Atlas Constr., 166 AD2d 401 [2d Dept. 1990]; Alston v. Golub Corp., 129 AD2d 916-7 [3d Dept. 1987]; Hauff v. CLXXXII Via Magna Corp., 118 AD2d 485 [1st Dept. 1986]. This Court is in accord. See, Haimes v. NY Telephone, supra. A device is not considered adequate under the statute unless it is properly placed and operated. See, Fanning v. Rockefeller Univ., 2013 NY AD LEXIS 3344 [1st Dept. 2013]. The statute places the onus on owners, contractors and their agents, not the injured worker, to ensure compliance therewith. See, Gallagher v. NY Post, 14 NY3d 83 [2010]; Auriemma v. Biltmore Theatre, 82 AD3d 1 [1st Dept. 2011]; Ramos v. PA, 306 AD2d 147-8 [1st Dept. 2003]. Justice McGuire in Jones was clarifying, not changing, the law in this regard. We argued (since we represented the plaintiff in that appeal) that to impose a foreseeability requirement would improperly non-suit injured construction workers for not establishing why a device collapsed where such proof was not available, thus providing less protection than workers would receive under an ordinary negligence theory. Justice McGuire then stated that this was not true, for the only foreseeability issue was “whether plaintiff was exposed to an 43 elevation-related risk”, and only where same “was not apparent from the nature of the work, such that the defendant would not normally be expected to provide the worker with a safety device to prevent the worker from falling” (57 AD3d at 79-80). So the opposite is also true - where the risk is clear from the nature of the work, plaintiff need not establish foreseeability: “Plaintiff is relieved from demonstrating a number of elements he would have to prove in a common law negligence claim, including that defendants breached a duty of care owed to him and that defendants created or had notice of a defective condition.” The First Department itself in Ortega v. NYC, 95 AD3d 125 [1st Dept. 2012] found that a plaintiff’s expert need not establish foreseeability where a non-permanent structure collapses. Where the risk of injury from an elevation differential is apparent based on the configuration of the work site, a plaintiff need not establish foreseeability of the collapse of a device or prove that the device was defective. Here, the structure that fell was in the process of being moved and it was readily apparent that if the conduit was not properly secured it could fall and injure workers in the vicinity. Defendants’ claims in this regard should be rejected out of hand. Notwithstanding the clear holdings of the cases, defendants are seeking to expand the limited foreseeability 44 requirement beyond the confines of permanent structures considered in Jones, Espinosa, Vasquez and Ortega. This Court should decline to extend the foreseeability requirement to anything other than permanent structures like a floor or other walking surface in which the risk of injury as a result of gravitational forces is not readily apparent. Indeed, defendants seek to burden plaintiffs with expert testimony showing that the precise nature of the accident was foreseeable as part of the plaintiff’s prima facie case even though the pencil box, Kindorf support and conduit pipe were clearly not permanent structures. This Court should not read in to the statute such a requirement which is found nowhere in the statute itself - indeed, the statute imposes no requirement that a particular accident be foreseeable. It is enough that given the inherently dangerous conditions of work sites, it is foreseeable that an owner or contractor’s failure to provide safety devices to workers, as here, may create an injury. Reading into the statute a foreseeability requirement based on the facts disclosed by this record would, therefore, not only limit the scope of the statute and go against this Court’s guidance on the issue, but also fly in the face of the statute’s legislative intent, which primarily is to ensure the safety of workers, not to limit contractor liability to accidents that are foreseeable. See e.g., Zimmer, 65 NY2d at 520, [where this 45 Court has expressly recognized a legislative intent of placing ultimate responsibility for safety on owners and general contractors, rather than workers who “are scarcely in a position to protect themselves from accident”]; Mem. of Sen Calandra and Assemblyman Amann, 1969 N.Y. Legis. Ann., 1969 at 407 [“(t)he Labor Law was enacted for the sole purpose of protecting workmen” (emphasis added)]. Rather, in the present case, a device precisely of the sort enumerated by the statute was not “placed and operated” as to provide adequate protection to plaintiff. Runner, 13 NY3d at 603. The compression coupling was not adequate to secure the conduit pipe. Plaintiffs made out a prima facie case in that they established with evidence in admissible form that plaintiff was working at a construction site and was injured as the result of the gravity-related hazard created by the elevation differential of the conduit pipe and where plaintiff was working, and that the compression coupling which was used to secure the conduit pipe, failed to protect him. Indeed, here, unlike Wilinski, where the plaintiff failed to demonstrate that protective devices could have prevented the accident, plaintiffs submitted testimony indicating that the accident could have been prevented had the conduit pipe been secured with set screw couplings. Howell v. Bethune W. Assoc., LLC., 33 Misc.3d 1215(A) [Sup. Ct., N.Y. County 2011]). Thus, 46 they were entitled to summary judgment on the Labor Law §240(1) claim. According to the defendants, the accident here was unforeseeable because “the conduit was secured in place by a comprehensive system of structural support which unquestionably would have supported the conduit while the drilling was taking place”. [Brief at p. 25] This is simply not true because the defendants failed to provide adequate safety devices and the core objective of the statute was not met - namely, preventing an object from striking the plaintiff. Thus, because the defendants failed to provide the proper safety devices to the plaintiff, the plaintiff’s injury was a foreseeable result of performing work underneath the conduit pipe. See, Gordon v. Eastern Ry. Supply, supra. The breach of the statute by defendants was sufficient to impose liability. Indeed, under defendants’ rationale, plaintiff’s §240(1) claim in Gordon would have been dismissed. In any event, if foreseeability were a required element, plaintiffs have nevertheless demonstrated their entitlement to partial summary judgment as to liability on the Labor Law §240(1) claim. It was foreseeable both that the conduit pipe could fall if it was not adequately secured and that plaintiff would sustain an injury as a result because he had to work underneath the conduit pipe in order to drill new core holes into the ground once the pencil box was cut away from the conduit pipe. 47 B. Plaintiff’s Conduct was not the Sole Proximate Cause Defendants’ alternative argument - that the 240[1] claim should be dismissed because plaintiff’s injury was caused solely by his misuse of the Kindorf supports by disconnecting them from the conduit pipe [Brief at pp. 29-30], is similarly without merit because it is based on a fundamental misunderstanding of the facts in this case. According to the defendants, plaintiff misused the Kindorf support when he disengaged the conduit from the Kindorf support, and it was only after this was done “that a risk of it falling arose”. [Brief at p. 30] The record belies this assertion. Plaintiff did not testify that he disconnected the Kindorf support from the conduit. According to plaintiff’s testimony, the Kindorf support was never attached to the conduit. Instead, plaintiff testified that the Kindorf support was connected to the pencil box; its purpose was to lend support to the pencil box, not the conduit pipe. In fact, plaintiff clearly testified that he was drilling core holes in the ground so he could reposition the Kindorf support, which was connected to the pencil box: Q. Then what did you do? A. Remove the pencil box on the Kindorf10. Picture B11, the center of the picture, there are two supports known as Kindorf. 10 The word “Kindorf” is misspelled in the transcript of the plaintiff’s deposition as “kindorff”. To remain consistent, we will refer to its correct spelling. 48 Q. So when you were removing the pencil box, were you repositioning it left or right or up or down? A. Left to right. Q. The Kindorf is supporting the pencil box, as you can see in Picture A, four holes, but the Kindorf would support the box indicated in Defendant’s Exhibit A? A. That’s the bottom of the box and there are two holes on top. We took those holes out, removed the box and when I had to drill new supports for the Kindorf for the box and in the process of drilling the holes, the piece of conduit fell on my right hand. [270-271] [emphasis added] Incredibly, defendants themselves concede in their brief at p. 4, that the Kindorf support was used to secure the pencil box - “The pencil box itself was secured by a steel strut support known as ‘Kindorf’ support, which was affixed vertically to the floor and also horizontally to the wall by means of a perpendicular extension.” [Brief at p. 4] In any event, even if the Kindorf was connected to the conduit pipe, defendants’ argument refutes itself because if the Kindorf was attached to the pencil box vertically and the change order required the plaintiff to move the pencil box from left to right, then it is only logical that the Kindorf support would have to be disconnected from the conduit pipe and moved together with the pencil box. In other words, plaintiff could not have 11 Although the two photographs used by the defendants in plaintiff’s deposition (marked as Exhibit A and Exhibit B) were not part of the original record on appeal, upon request, we can make them available to the Court because they are a visual aide and would provide the Court with a better understanding of the facts in this case. There would be no prejudice to the defendants because they were marked by defense counsel during Mr. Fabrizi’s deposition. 49 moved the pencil box without moving the Kindorf support from the conduit pipe at the same time. This fact completely demolishes defendants’ sole proximate cause argument. Moreover, the defendants’ assertion that the plaintiff’s conduct was the sole proximate cause of the accident is unavailing, inasmuch as he neither engaged in unforeseeable or reckless activities nor did he misuse a safety device that was provided to him [see, Montgomery v. Federal Express Corp., 4 NY3d 805, 806 [2005]; Urias v. Orange County Agric. Socy., 7 AD3d 515 [2004]; Weingarten v. Windsor Owners Corp., 5 AD3d 674, 677 [2004]]. As this Court previously held, “Once it is determined that the worker or contractor failed to give a worker proper protection, absolute liability is unavoidable under Section 240[1]” Bland v. Manocherian, supra, 66 NY2d 452, 453 [1985]; Zimmer v. Chemung, supra, 65 NY2d 513, 514 [1985]]. It is true that even after a plaintiff has made a prima facie case of entitlement to judgment as a matter of law, a defendant can escape liability by showing that the worker’s acts were the “sole” proximate cause of his accident. However, where the worker was following the instructions of his supervisor, as in the instant case, the worker will not be found to be solely responsible. For example, in Pichardo v. Aurora Contractors, Inc., 29 AD3d 879 [2d Dept. 2006], the plaintiff, at the 50 direction of his supervisor, disassembled a single extension ladder into two sections. Used this way, only the bottom of plaintiff’s ladder was skid-proof, and the top of the ladder slid along the wall, causing plaintiff to fall to the ground. The Second Department rejected defendants’ argument that plaintiff’s disassembly of the ladder was the sole proximate cause of the accident and found that plaintiff “did not decline the use of appropriate safety devices and unilaterally elect to separate the ladder, but instead participated in its disassembly pursuant to the directions and example of his supervisor”. The trial court had denied plaintiff’s motion for summary judgment pursuant to Labor Law §240[1]; the Second Department reversed. Like plaintiff in Pichardo, the plaintiff in this case acted pursuant to his supervisor’s instructions. Indeed, the change order issued by the defendants required that the plaintiff reposition the pencil box and Kindorf supports [325]. The plaintiff testified that once the pencil box had been moved, the Kindorf supports had to be moved to a different point in the floor and secured [275]. The defendants failed to submit any evidence establishing that the plaintiff’s actions were unforeseeable and reckless, let alone improper. In addition, there is nothing on this record which even remotely suggests that what the plaintiff did was incorrect. In fact, the plaintiff was doing exactly what he was instructed to do - 51 reposition the pencil pox and Kindorf supports so that the conduit pipes could run up through the building. Thus, even if there was some evidence remotely lending support to the defendants’ contention, their argument must still fail. In Broderick v. Caldwell-Wingate Co., 301 NY 182, 188 [1950], this Court observed: “When a person in the capacity of a superior assumes control over a workman on a job site and directs him to proceed under circumstances recognizable as dangerous, the subordinate workman has little, if any choice in the matter but to obey it and, if he stays within the limits of the superior’s instructions and is injured, he may not be penalized by a claim of contributory negligence as a matter of law.” The First Department itself has held that a plaintiff “cannot be the sole proximate cause of his or her injuries where uncontroverted evidence shows that the plaintiff followed his or her supervisor’s instructions and did not, on his or own initiative, take a foolhardy risk which resulted in injury” (Fernandez v. BBD Dev., 103 AD3d 554-6 [1st Dept. 2013]; see also, Harris, supra). That plaintiff was following directions given to him by his supervisor distinguishes this case from those in which plaintiffs acted of their own volition. Given this Court’s consistent pronouncements that it is for owners, contractors and 52 statutory agents to ensure that safety devices are properly placed and operated at the construction site, and the undisputed fact that no adequate devices were provided here, defendants’ contention that the plaintiff was solely responsible for his accident because he removed the Kindorf supports cannot defeat plaintiff’s right to recovery. In fact, plaintiff testified that there was nothing that he could have done differently which would have prevented his accident [341]. The only thing, which could have prevented the accident, was the use of set screw couplings, which were safer and provided better support for 60 to 80 pound galvanized steel conduit pipes. In addition, plaintiff’s partner, Thomas DeAngelis, stated in a statement produced by defendants that it was his expert opinion that had set screw couplings been provided, the accident would not have occurred [349]. Further, there is there is no evidence on this record that plaintiff had ever been instructed not to reposition the Kindorf supports. Chris Porcello never offered any testimony to the contrary. In fact, Mr. Porcello admitted that he did not know what the plaintiff was told to do as he was not responsible for this aspect of the job. J.T. Magen’s other project superintendent, Doug Bader, was responsible for this part of the job [473]. However, defendants never produced Mr. Bader for a deposition and never submitted an affidavit from him in support 53 of their motion or in opposition to the plaintiff’s motion for partial summary judgment. This proof is sufficient to preclude the argument that plaintiff was a “recalcitrant” worker (Cahill v. TBTA, 4 NY3d 35 [2004]; Nacewicz v. RC Church, 963 NYS2d 14 [1st Dept. 2013]; Tzic v. Kasampas, 93 AD3d 438 [1st Dept. 2012]). We respectfully submit that the defendants’ attempt to establish that the plaintiff’s actions were the sole proximate cause of his accident because he removed the Kindorf supports prior to drilling is not supported by any evidence or expert testimony. It is well established that an attorney may not give an expert opinion if she is not an expert in the relevant field [see, Contacare, Inc. v. Ciba-Geigy Corp., 49 AD3d 1215, 1216 [4th Dept. 2008]; Kingsbrook Jewish Medical Center v. Allstate Ins. Co., 61 AD3d 13 [2d Dept. 2009]. In addition, in Mr. DeAnglis’ sworn statement, he stated that while they were told by the project’s engineer to use compression couplings, the rest of the workers at the project used set screw couplings [349]. Under these circumstances, plaintiff’s conduct cannot constitute the sole proximate cause of the accident. Even if there was some semblance of credibility to the defendants’ argument, at most, it constituted comparative negligence, which is not a defense to a §240[1] claim. Bland, supra. Indeed, the 54 defendants’ failure to provide the plaintiff with the proper set screw couplings was the direct cause of his accident. Thus, the plaintiff cannot be found solely to blame for the happening of his accident. [see, Hernandez v. 151 Sullivan Tenant Corp., 307 AD2d 207, 208 [2003]]. In fact, such a finding is “conceptually impossible” (Blake, supra). CONCLUSION Based upon the forgoing, it is respectfully submitted that the First Department’s certified question should be answered in the negative and this Court should modify the order by granting plaintiff’s cross-motion for partial summary judgment on liability on the Labor Law §240[1] claim and issue such other further and different relief as it deems just and proper. Respectfully submitted, BLOCK O’TOOLE & MURPHY, LLP Attorneys for Plaintiff-Respondent By: ____________________________ Brian J. Isaac, Esq. POLLACK POLLACK ISAAC & DECICCO, LLP Appellate Counsel 225 Broadway, Suite 307 New York, New York 10007 [212] 233-8100 Brian J. Isaac, Esq. Michael H. Zhu, Esq. Of Counsel