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]

Brief

N.Y.January 9, 2014

To be Argued by: DANIEL ZEMANN, JR. (Time Requested: 15 Minutes) APL-2012-00355 New York County Clerk’s Index No. 108280/08 Court of Appeals of the State of New York   RICHARD FABRIZI, Plaintiff-Respondent, - against - 1095 AVENUE OF THE AMERICAS, L.L.C., J.T. MAGEN CONSTRUCTION COMPANY, INC., and DECHERT LLP, Defendants-Appellants, VERIZON NEW YORK, INC. and TISHMAN CONSTRUCTION CORPORATION, Defendants. ---------------------------- 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. ---------------------------- (For Continuation of Caption See Reverse Side of Cover) BRIEF FOR DEFENDANTS-APPELLANTS Of Counsel: DANIEL ZEMANN, JR. DAVID B. FRANKLIN LONDON FISCHER LLP Attorneys for Defendants-Appellants NY-1095 Avenue of the Americas, L.L.C., s/h/a 1095 Avenue of the Americas, L.L.C., J.T. Magen Construction Company, Inc., and Dechert LLP 59 Maiden Lane, 39th Floor New York, New York 10038 Tel.: (212) 972-1000 Fax: (212) 972-1030 Date of Completion: April 15, 2013 DECHERT LLP, Second Third-Party Plaintiff, - against - FOREST ELECTRIC CORP., Second Third-Party Defendant. DISCLOSURE STATEMENT PURSUANT TO 22 NYCRR 500.1(f) Pursuant to 22 NYCRR 500.1(t), Defendant-Appellant NY-1095 Avenue of the Americas, LLC (incorrectly s/h/a as "1095 Avenue of the Americas, L.L.C.), states that it does not have any parents, subsidiaries or affiliates. Pursuant to 22 NYCRR 500.1(t), Defendant-Appellant J.T. Magen & Company, Inc. (incorrectly s/h/a as "J.T. Magen Construction Company, Inc."), states that it does not have any parents, subsidiaries or affiliates. Pursuant to 22 NYCRR 500.l(t), Defendant-Appellant Dechert LLP, states that it does not have any parents, subsidiaries or affiliates. Dated: New York, New York Aprill5, 2013 David B. Franklin Attorneys for Defendants/ Appellants J.T. MAGEN CONSTRUCTION COMPANY, INC., NY-1095 AVENUE OF THE AMERICAS, L.L.C. s/h/a 1095 A VENUE OF THE AMERICAS, L.L.C. and DECHERTLLP 59 Maiden Lane, 39th Floor New York, New York 10038 (212) 972-1000 TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................... i TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ................................................................................ ! STATEMENT OF FACTS ........................................................................................ 3 PROCEDURAL HISTORY ....................................................................................... 7 QUESTION PRESENTED AND STATEMENT OF JURISDICTION ................... 9 ARGUMENT ......................................................................................................... 10 I. THE CIRCUMSTANCES GIVING RISE TO PLAINTIFF'S INJURY ARE OUTSIDE THE SCOPE OF LABOR LAW §240(1) 10 A. Plaintiff's injury was not caused by the inadequacy or absence of a protective device "of the kind" enumerated in Labor Law§ 240(1) ....................................................................... 11 B. Owners and contractors are only required to provide protection against "foreseeable" gravity-related risks .................................... 20 II. PLAINTIFF'S INJURY WAS CAUSED SOLELY BY HIS MISUSE OF THE SUPPORTS OF THE CONDUIT BY DISCONNECTING THEM ................................................................................................ 28 a. ALL ISSUES RAISED IN THE INSTANT APPEAL ARE PROPERLY BEFORE THIS COURT .......................................... 33 CONCLUSION ....................................................................................................... 36 TABLE OF AUTHORITIES Cases Blake v. Neighborhood Hous. Servs. of New York City, Inc., 1 N.Y.3d 280, 803 N.E.2d 757, 771 N.Y.S.2d 484 (2003) ................................................... 28, 30 Broggy v. Rockefeller Group, 8 N.Y.3d 675, 870 N.E.2d 1144, 839 N.Y.S.2d 714 (2007) ............................................................................................................ 30 Buckley v. Columbia Grammar, 841 N.Y.S.2d 249, 44 A.D.3d 263 (1st Dept. 2007) ............................................................................................................. 22 Garcia v. DPA Wallace Avenue, 955 N.Y.S.2d 320, 101 A.D.3d 415, 416 (1st Dept. 2012) ................................................................................................... 14 Hecker v. State, 92 A.D.3d 1261, 1262, 937 N.Y.S.2d 815 (4th Dept. 2012) ...................................................................................... 35, 36 Hecker v. State, 2013 NY Slip Op 02105 (March 28, 2013) .................................................................................... 35, 36 Marin v. AP-Amsterdam 1661 ParkLLC, 875 N.Y.S.2d 242, 60 A.D.3d 824, 825 (2nd Dept. 2009) ........................................................................................... 14 McLean v: 405 Webster Ave. Assoc., 98 A.D.3d 1090,951 N.Y.S.2d 185 (2d Dept. 2012) ............................................................................................................. 22 Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 657 N.E.2d 1318, 634 N.Y.S.2d 35 (1995) ..................................................................... 10-12, 14-19, 23, 25, 33 Narducci v. Manhasset Bay, 96 N.Y.2d 259, 750 N.E.2d 1085, 727 N.Y.S.2d 37 (2001) .......................................................................... 10-14,16, 19,23-25,33 Outar v. City of New York, 286 A.D.2d 671, 730 N.Y.S.2d 138 (2d Dept. 2001); aft' d. 5 N.Y.3d 731, 832 N.E.2d 1186, 799 N.Y.S.2d 770 (2005) .......................................................................................... 21, 30, 31,33 Robinson v. East Medical Center, LP, 6 N.Y. 3d 550, 847 N.E.2d 1162, 814 N.Y.S.2d 589 (2006) ......................................................................................... 28, 30 ii Rocovich v. Consol. Edison Co., 78 N.Y.2d 509, 583 N.E.2d 932, 577 N.Y.S.2d 219 (1991) ............................................................................................... 10, 11 Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501, 618 N.E.2d 82, 601 N.Y.S.2d 49 (1993) ....................................................................................... 10 Quattrocchi v. F.J. Sciame Constr. Corp., 11 N.Y.3d 757,859 N.Y.S.2d 396 (2008), aff'g 44 A.D.3d 377, 843 N.Y.S.2d 564 (1st Dept. 2007) ............... 22 Vasquez v. UrbahnAssoc. Inc., 79 A.D.3d 493,496 (1st Dept. 2010) ................... 23 Wilinski v. 334 East 92 Housing Development Fund Corp., 18 N.Y.3d 1, 935 N.Y.S.2d 551, 959 N.E.2d 488 (2011) ............................ 12, 15-18, 24, 25, 27 Statutes N.Y. Lab. Law§ 240(1) (McKinney 2009) ................................................ 1,passim. N.Y. C.P.L.R. 5713 (McKinney 2013 ....................................................................... 9 N.Y. C.P.L.R. 5602(b) (McKinney 2013) ................................................................. 9 iii PRELIMINARY STATEMENT In this personal injury action, Plaintiff-Respondent, Richard Fabrizi ("Plaintiff'), seeks to recover under N.Y. Lab. Law§ 240(1) (McKinney 2013) for personal injuries sustained in a workplace accident. At the time of his injury, Plaintiff was drilling into a concrete floor when a piece of galvanized steel conduit which was part of the building's pre-existing telecommunications infrastructure dislodged and fell approximately two feet on to his hand, causing him injury. The first question before this Court is whether the circumstances of Plaintiff's injury fall within the scope of Labor Law §240(1) protection. The factual record here and this Court's precedent establishes that it does not. The "falling object" which injured Plaintiff was part of the building's completed infrastructure as it appeared when Plaintiff's work began, and this Court's precedent is clear that under such circumstances, the risk of a component of a completed building structure falling onto a worker is considered to be a "general workplace hazard," rather than a risk covered under Labor Law §240(1 ). Moreover, Plaintiff does not allege that any protective device "of the kind prescribed by the statute" could have prevented his injury, and the nature of the work Plaintiff was performing; drilling into a floor, was not an activity which would anticipate the need for a protective device of the kind prescribed by the statute. The circumstances of Plaintiff's injury are therefore outside the scope of 1 Labor Law §240(1 ), entitling Appellants to summary judgment dismissing that claim. Even if this Court were to find that the circumstances of Plaintiff's injury do fall within the scope of Labor Law §240(1 ), it is undisputed that when Plaintiff began his work, the conduit was firmly secured in place at its top and bottom. Before drilling into the concrete floor, Plaintiff personally detached the underlying structural support equipment which had secured the conduit in place, and left the conduit hanging by only compression coupling at its top. Thus, Plaintiff is seeking to invoke Labor Law §240(1) to recover against the owners and general contractor of a work site for purportedly failing to adequately secure the very item that he personally unsecured just minutes before it fell on him. That Plaintiff's actions were the sole proximate cause of his injuries could not be clearer, as is the inequity of holding Appellants liable for purportedly failing to protect against a risk that Plaintiff himself created. For the foregoing reasons, Appellants respectfully request that this Court reverse the September 18, 2012 decision of the Appellate Division, First Department in part, and issue an Order dismissing Plaintiff's Labor Law §240(1) claim in its entirety. 2 STATEMENT OF FACTS On March 20, 2008, Plaintiff was performing work as an electrician for non-party Forest Electric Corp. at a job site at 1095 Avenue of the Americas in New York, New York. (R. 129) The building was owned by Defendant-Appellant 1095 Avenue of the Americas, LLC ("1095") and Defendant-Appellant Dechert LLP ("Dechert") was a tenant in the building. (R. 448).1 Defendant-Appellant J.T. Magen Construction Company, Inc. ("Magen") was hired by Dechert to serve as the general contractor and oversee a build-out of the space it leased from the building owner, 1095. (R. 452-453). Plaintiff's alleged injury occurred in a telecommunications closet on the eleventh floor of the building, when he was struck in the hand by a piece of galvanized steel conduit pipe. (R. 129). Prior to Plaintiff's injury, his employer had installed a four-inch wide "riser" (a vertical run of conduit) in the eleventh floor closet, and this vertical run of conduit consisted of connected sections of galvanized steel conduit pipe, through which telecommunications wires would run. (R. 264-266). The vertical run of conduit ran throughout the building from floor to floor, and on each individual floor, the conduit sections were situated on top of each other vertically, and separated in the middle by a rectangular "pencil box." 1 References to the Record on Appeal are to "(R. __)." 3 (R. 264-266; 457-458). For the Court's reference, a photograph of the conduit/pencil box assembly can be found at R. 513. The section of conduit which struck Plaintiff was completely installed at least one week prior to the date of Plaintiff's accident, and was firmly secured in place at both its top and bottom ends at the time Plaintiff began his work on the day of his injury. (R. 250-251, 266). Specifically, on the eleventh floor, there was a conduit which ran from the floor to the bottom of the pencil box, with another section of conduit connected to the top of the pencil box. The conduit which ultimately struck Plaintiff's hand was the one situated on top of the pencil box. (R. 250-251). 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. (R. 270-271 ). The lower conduit was secured at its bottom by being attached to the floor and the underside of the pencil box. (R. 270-271). The upper section of conduit was attached to the top of the pencil box and to another section of conduit near the ceiling by a compression coupling, which is a ring-shaped device that tightens around the conduit to help secure it in place. (R. 255; 465-466). The purpose of the kindorf support and the metal connector was to keep the conduit secured in place as part of the permanent telecommunications infrastructure. (R. 473-475). 4 Plaintiff was not involved in the installation of the conduit system on the eleventh floor, but had worked on installing parts of the conduit system on other floors. (R. 333). While performing such installation on other floors of the building, Plaintiff claims that he requested that a different kind of coupling, known as a set-screw coupling, for the purpose of assembling the conduit system. (R. 333, 336-337). However, he confirmed that his request was made at least a week before the subject incident, and not in conjunction with the specific task he was engaged in on the date of his accident. (R. 336-337). On the morning of Plaintiff's injury, pursuant to a change order issued for the purpose of altering the completed, pre-existing conduit system, Plaintiff was assigned the task of shifting the pencil box on the eleventh floor of the building over from the right side of the conduit to the left side of the conduit, in order to free up additional space for additional equipment which was to be later installed by another trade in the closet. (R. 250-251). Plaintiff made clear that the conduit- pencil box assembly had been completed "a hundred percent" prior to beginning his work that day (R. 266), and that the change order was issued in order to "alter the work that's been done already." (R. 250). In order to reposition the pencil box on the opposite side of the conduit, it was necessary for Plaintiff to drill new holes in the concrete floor of the closet directly underneath the new location of the pencil box, so as to allow for new 5 kindorf support to be installed. (R. 271). However, before beginning to drill the new holes in the concrete closet floor underneath the conduit/pencil box assembly, Plaintiff took the unusual step of first detaching the equipment which had secured the conduit/pencil box assembly in place. (R. 270-271 ). First, Plaintiff detached the steel kindorf support that had secured the conduit system to the wall and floor. (R.270-271 ). He then used a saw to cut the metal connector that had secured the bottom of the upper piece of conduit to the top of the pencil box, and cut and removed the conduit section that had been situated underneath the pencil box. (R. 270-271). As a result, the remaining section of conduit, which had previously been firmly secured above the pencil box at both ends, was now left hanging by only the compression coupling at its top. (R. 271, 275). Approximately 15-20 minutes after dismantling the underlying support for the pencil box/conduit assembly, Plaintiff then proceeded to kneel directly underneath the now-hanging conduit and began to drill into the concrete floor. (R. 275-276, 343). As he was in the process of drilling into the floor, the conduit, from which he removed its support, fell onto his right hand, causing him personal injuries. (R. 275-276). 6 PROCEDURAL HISTORY A. Trial Court Proceedings After the conclusion of discovery, Appellants Magen and 1095 filed a motion for summary judgment seeking to dismiss Plaintiff's claims brought under Labor Law §240(1), New York State Labor Law §200, and New York State Labor Law §241(6). Appellants argued to the motion court that the risk presented by the conduit was not one of the gravity-related risks within the scope of Labor Law §240(1) (R. 37, 882), and that Plaintiff's negligence in removing the underlying structural support for the conduit negated any potential liability on the part of the Appellants (R. 39, 882). Plaintiff opposed the motion, and cross-moved for summary judgment on his claims brought under Labor Law §240(1).2 In an order dated June 9, 2011, the Supreme Court, New York County (Hon. Emily S. Goodman, J.), granted Plaintiff's cross-motion for summary judgment on his claims brought under Labor Law §240(1), denied the portion of Defendants' motion seeking summary judgment dismissing Plaintiff's claims brought under Labor Law §240(1), and granted the portion of Defendants motion seeking summary judgment dismissing Plaintiff's claims brought under Labor Law §241(6) and Labor Law §200. (R. 10). B. Appellate Division Proceedings 2 Though Appellant Dechert did not affirmatively move for summary judgment, Plaintiff cross- moved for summary judgment against all defendants, including Dechert. 7 Appellants then appealed to the Appellate Division, First Department, seeking reversal of the motion court's decision and an Order granting Appellants summary judgment dismissing Plaintiff's Labor Law §240(1) claims. (R. 1-6). In an Order dated September 18, 2012, the First Department issued a split decision in which it modified the trial court's order, holding that the motion court erred in granting Plaintiff's cross-motion for summary judgment on his Labor Law §240(1). (R. 894). The court declined to award summary judgment to Appellants, holding that there were issues of fact which precluded an award of summary judgment to either party. (R. 896). Justice Roman filed a concurring opinion ("Roman Concurrence") in which he noted that while there were issues of fact which precluded summary judgment, the appropriate standard to be applied in determining whether the circumstances of Plaintiff's injuries were within the ambit of Labor Law §240(1) is whether the gravity-related risk which resulted in Plaintiff's injuries was "foreseeable." (R. 900). Presiding Justice Peter Tom filed a dissenting opinion ("Tom Dissent") in which he sharply criticized the majority's holding and explained that the Appellants should have been awarded summary judgment, reasoning that the facts were outside the scope of Labor Law 240(1 ), because the coupling which Plaintiff claimed was inadequate "is not a statutory safety device," (R. 921 ), and in any 8 event, Plaintiff's conduct in removing the underlying structural support for the conduit was the sole proximate cause of his injury. (R. 924 ). On October 1, 2012, Appellants filed a timely motion to the Appellate Division, First Department seeking reargument of the court's September 18, 2012 decision, or in the alternative, leave to appeal to the Court of Appeals. In an order dated December 13, 2012, the First Department issued an order which denied Appellants' application for reargument, but granted Appellants' application for leave to appeal to the Court of Appeals. (R. 893). The instant appeal followed. QUESTION PRESENTED AND STATEMENT OF JURISDICTION In its December 13, 2012 Order granting leave to appeal to the Court of Appeals (R. 893), the First Department certified the following question of law pursuant to Civil Practice Law and Rules (McKinney 2013) §5713: 'Was the order of the Supreme Court, as modified by the [sic] this Court, properly made?' In accordance with the First Department's Order, this Court has jurisdiction to answer this question and to adjudicate the issues raised in appeal pursuant to CPLR 5602(b ). A more detailed discussion of the preservation of the issues herein for appeal is contained with the Argument section of this Brief at Point III, infra. 9 ARGUMENT POINT I THE CIRCUMSTANCES GIVING RISE TO PLAINTIFF'S INJURY ARE OUTSIDE THE SCOPE OF LABOR LAW §240(1) In the context of protecting workers from "falling objects" at a work site, Labor Law §240(1) requires owners and contractors to furnish safety devices, including "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection" in order to provide protection for workers from overhead items which are being hoisted and secured. See, e.g. Rocovich v. Consol. Edison Co., 78 N.Y.2d 509, 513, 583 N.E.2d 932, 577 N.Y.S.2d 219 {1991). However, the scope of this statutory requirement is limited, and does not "encompass any and all perils that may be connected in some tangential way with the effects of gravity." Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501, 618 N.E.2d 82, 601 N.Y.S.2d 49 (1993). In other words, some gravity-related risks at a job site are the type of risks which the statute seeks to prevent, while some gravity-related risks are not. In order to establish that he was entitled under Labor Law §240{1) to protection from the gravity-related risk here, Plaintiff is required to demonstrate the following: 1) the injury was caused by the inadequacy or absence of a protective device of the 10 kind enumerated in Labor Law §240(1) (See Narducci v. Manhasset Bay, 96 N.Y.2d 259, 750 N.E.2d 1085, 727 N.Y.S.2d 37 (2001); Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 657 N.E.2d 1318, 634 N.Y.S.2d 35 (1995)); and 2) the nature of the task being performed by Plaintiff at the time of his injury presented a foreseeable risk of a gravity-related injury. (See Narducci, 96 N.Y.2d 259). Here, the evidence demonstrates that neither of these factors are present, which warrants the finding that the circumstances of Plaintiff's injury are outside the scope of Labor Law §240(1). A. Plaintiff's injury was not caused by the inadequacy or absence of a protective device "of the kind" enumerated in Labor Law §240(1) In determining whether a particular risk is within the scope of Labor Law §240(1), this Court has focused on the kind of protective equipment that the defendants purportedly should have implemented to protect against a particular risk. As this Court explained in Rocovich, "[t]o ascertain the sort of risk contemplated by section 240(1 ), we look first to the statutory wording. While section 240(1) does not purport to specify the hazards to be avoided, it does specify protective means for the hazards' avoidance." Rocovich, 78 N.Y.2d at 509. (internal citations omitted). Indeed, it is essential to note that the language of Labor Law §240(1) does not explicitly list any of the risks against which it requires owners and contractors 11 to protect. The words "gravity," "elevation," and "secure" are not contained anywhere in the statute. Instead, the statutory language requires that specific kinds of devices be implemented in order to provide "proper protection" to workers. Given that the statutory language focuses exclusively on the kinds of devices which must be provided, this Court has adopted the principle that the only risks which are within the scope of Labor Law §240(1) are those in which "the proper 'erection', 'construction', 'placement' or 'operation' of one or more devices of the sort listed in section 240(1) would allegedly have prevented the injury." !d. at 514. (emphasis added). In the context of injuries caused by "falling objects," this Court has repeatedly emphasized that in order to establish that the injury falls within the scope of Labor Law §240(1 ), a plaintiff must demonstrate that his injury was caused by the absence or inadequacy of a device "of the kind" prescribed by the statute. The three most significant cases on this issue are Misseritti, 86 N.Y.2d 487, Narducci, 96 N.Y.2d 259 and Wilinski v. 334 East 92 Housing Development Fund Corp., 18 N.Y.3d 1, 935 N.Y.S.2d 551, 959 N.E.2d 488 (2011). In Misseritti, the plaintiff dismantled the scaffolding used to erect a completed concrete block firewall, and while in the process of sweeping the floor in front of the wall, the wall collapsed on to him. 86 N.Y.2d 487. The plaintiff claimed that his injury was caused by the defendants' failure to use wooden planks 12 to vertically "brace" the wall, which would have purportedly prevented the wall from falling onto him while he was sweeping the floor next to it. !d. In determining whether the facts fell within the scope of §240(1 ), this Court focused primarily on whether a protective device contemplated by Labor Law §240(1) could have prevented the plaintiff's injury. This Court held that the bracing that the plaintiff claimed should have been implemented was not the type of "brace" contemplated by §240(1), but was instead a device which was "designed to shore up or lend support to a completed structure." !d. at 491. (emphasis added). Accordingly, this Court awarded summary judgment to the defendants, holding, "the collapse of a completed fire wall is [not] the type of elevation-related accident that section 240(1) is intended to guard against. Rather, the accident that resulted in [the plaintiff's] grave injuries is the type of peril a construction worker usually encounters on the job site." !d. (internal citations omitted). In Narducci, supra, the plaintiff was assigned the task of removing steel window frames from a warehouse, and while sawing one of the window frames loose, a large piece of glass from an adjacent window fell and struck his arm, causing him injury. 96 N.Y.2d 259. The plaintiff brought a claim under Labor Law §240(1 ), under the theory that the defendants failed to provide him with "proper protection" from the falling glass. !d. Despite the fact that the plaintiff's injury was clearly gravity-related, this Court awarded summary judgment to the 13 defendants, holding: "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, and thus Labor Law § 240 (1) does not apply." I d. at 268. This Court reasoned: "[t]he glass that fell was part of the pre-existing building structure as it appeared before work began. This was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected." Id. This Court further noted: Furthermore, while the risk of falling glass is assuredly greater at a warehouse whose windows have been damaged in a fire, that is not the type of risk that Labor Law § 240 (1) was intended to address. Absolute liability for falling objects under Labor Law§ 240 (1) arises only when there is a failure to use necessary and adequate hoisting or securing devices. The absence of a necessary hoisting or securing device of the kind enumerated in Labor Law§ 240 (1) did not cause the falling glass here. This was clearly a general hazard of the workplace, not one contemplated to be subject to Labor Law § 240 (1 ). Id. at 268-269. (emphasis in original). Since this Court's decisions in Narducci and Miseritti, a general consensus has emerged among the Appellate Divisions that injuries caused by objects which are part of the pre-existing building infrastructure are considered to be general hazards of the workplace, rather than risks contemplated under Labor Law §240(1). See, e.g. Marin v. AP-Amsterdam 1661 Park LLC, 875 N.Y.S.2d 242, 60 14 A.D.3d 824, 825 (2nd Dept. 2009) ("the statute generally does not apply to objects that are part of a building's permanent structure."); Garcia v. DPA Wallace Avenue, 955 N.Y.S.2d 320, 101 A.D.3d 415, 416 (1st Dept. 2012) ("The object upon which the force of gravity was applied, the weight in the overhead room, was not material being hoisted or a load that required securing for the purpose of carrying out plaintiff's undertaking. Rather, it was part of the preexisting structure as it appeared before plaintiff's work began.") In Wilinski, this Court re-addressed the issue of whether injuries caused by components of the pre-existing building structure are within the scope of Labor Law §240(1).3 18 N.Y.3d 1. In Wilinski, the plaintiff was injured when he was struck by pipes that were part of the pre-existing building structure which were knocked loose by debris from a nearby wall that was being demolished. ld. at 5. After being assigned the task of demolishing the walls, the plaintiff advised his foreman that he believed such demolition work could cause the pipes to fall, and alleged that protective devices such as "blocks" or "ropes" should have been implemented at that time to "secure the pipes and prevent the accident." Id. However, no such devices were put in place, and as the plaintiff had predicted, the pipes fell while the walls were being demolished, causing him injury. ld. 3 This Court's decision in Wilinski was issued shortly after the parties' briefs were submitted to the Appellate Division, and it therefore was not addressed in the briefs. However, the holding of Wilinski was addressed by the First Department at oral argument, and is expressly relied upon in the majority's opinion. 15 In holding that there were issues of fact precluding summary judgment to defendants, this Court reaffirmed the general rule set forth in Misseritti, but explained why the rule did not apply to the facts of the case: this case is distinguishable from Misseritti in a significant way: while, in Misseritti, the kinds of protective devices section 240(1) prescribes were shown to be inapplicable to the circumstances of the decedent's injury, here, neither party has met its burden with respect to that issue. Wilinski, 18 N.Y.3d at 11. (emphasis added). Thus, the plaintiff in Wilinski was able to defeat summary judgment by raising an issue of fact whether there was a device "of the kind prescribed by the statute" (i.e. "blocks" or "ropes") which could have been implemented at the time of the undertaking to prevent the injury. !d. Such a showing was absent in Misseritti and Narducci, and is similarly absent here. Applying the above-cited precedent to the facts here, in order to recover under Labor Law §240(1 ), the first element which Plaintiff must prove is that his injury was caused by the inadequacy or absence a safety device "of the type enumerated in §240(1)." Narducci, 96 N.Y.2d 259. Plaintiff has failed to meet this burden, because the equipment which Plaintiff claims was inadequate or missing here was simply not a device "of the type enumerated in Section 240(1 )." Specifically, the equipment which Plaintiff claims was inadequate to protect him from the falling conduit is the compression coupling from which the conduit 16 was hanging at the time of his injury. Plaintiff claims that instead of compression coupling, there should have been "set-screw" coupling in place to protect him from a gravity-related harm. (R. 337). Though a "set-screw" coupling functions slightly differently than the compression coupling which was in place here, Plaintiff himself acknowledged that both kinds of coupling perform the same function. (R. 338). The function performed by a coupling, and the reason it was installed here, was to support the conduit/pencil box assembly as part of the completed conduit system, and to connect it to the conduit which was in place above it. It is undisputed that the coupling here was installed long before Plaintiff's task was assigned. (R. 266, 336-337). Thus, the coupling was not a device which was specifically put in place for the purpose of protecting workers who were performing a gravity-related task; it was a component part installed when the telecommunications structure was being assembled, for the purpose of lending support to the completed structure. Indeed, contrary to the First Department's erroneous assertion, Plaintiff is not alleging that set-screw coupling should have been provided to him at the time his task was assigned; he is alleging that set- screw coupling should have been put in place at the time the conduit system was still being assembled, more than a week prior to Plaintiff's injury. Thus, it is clear that this case falls squarely in line with the general rule set forth in Misseritti, and is readily distinguishable from Wilinski. Under Misseritti, 17 when the protective equipment which Plaintiff claims was absent or inadequate is merely a device used to "lend support to a completed structure," as the coupling was here, it is not a device of the kind "enumerated in Labor Law 240(1 )." 86 N.Y.2d at 491. Since the purpose of the compression coupling which was in place, as well as the set -screw coupling which Plaintiff claims should have been in place, is solely to "lend support to a completed structure," the purported inadequacy of the compression coupling or the absence of set -screw coupling can not form a basis for recovery under Labor Law §240(1 ). /d. This rule set forth in Miseritti properly takes into account the inherent differences between devices such as coupling, which are put in place to lend support to a completed structure, and the devices prescribed by Labor Law §240(1), which are put in place to protect against a particular gravity-related risk inherent in the particular task a plaintiff is assigned to perform. One of the key differences between equipment used to "lend support to a completed structure" such as coupling here, and devices which are "of the kind enumerated in Labor Law 240(1 )," such as the "ropes" or "blocks" in Wilinski is when such devices are installed. Here, the coupling at issue was installed long before Plaintiff's injury occurred, and long before the tas.k he was performing at the time of his injury was even assigned. Thus, Plaintiff's claim is that Appellants should have installed "set- 18 screw" coupling at a time when the risk it was purportedly supposed to protect against, i.e., a falling conduit, did not even exist. It would defy logic to require Appellants to protect against a particular risk before that risk could even have been contemplated. Indeed, if Plaintiff's theory of recovery were to be accepted, Labor Law §240(1) would necessarily impose a duty upon all contractors who are building a structure to ensure that it will protect against all future gravity-related risks, ad infinitum, which may subsequently arise when a worker is altering or otherwise performing work in the general vicinity of the structure. As set forth in greater detail in Part B, infra, the Labor Law imposes no such duty, and instead only requires protection against foreseeable risks. Indeed, it would be manifestly improper for the Appellants to be held liable here for failing to contemplate, at the time the device was installed, whether it would be sufficient to protect against a gravity-risk that did not even exist at that time. Accordingly, Plaintiff has failed to meet his burden of demonstrating that there is an issue of fact whether the conduit fell due the inadequacy or absence of a securing device "of the kind prescribed by the statute," which entitles Appellants to summary judgment. See Misseritti, 86 N.Y.2d 487, Narducci, 96 N.Y.2d 259. 19 B. Owners and contractors are only required to provide protection against "foreseeable" gravity-related risks In addition to demonstrating that a device of the kind prescribed by the statute could have been implemented to protect against a particular gravity related- risk, Plaintiff must also demonstrate that Labor Law §240(1) required that Appellants protect against the risk in the first instance. As discussed at length in the Roman Concurrence, the principle which has guided this Court in determining what risks must be guarded against is foreseeability. As Justice Roman explained: Since not every injury caused by the effects of gravity falls within the ambit of Labor Law § 240 (1), it is clear that liability turns on the nature of the activity being performed, and more specifically, on whether the activity requires the use of the safety devices enumerated in the statute. Whether an activity requires the use of the safety devices enumerated within Labor Law § 240 (1) turns on whether "the risk of some injury from defendants' conduct [i.e., the failure to provide the requisite safety devices, is] foreseeable." More specifically, an accident falls within the purview of Labor Law § 240 (1) when, given the nature of the injury-producing task, a worker is exposed to a gravity-related hazard, meaning, a risk of a fall from an elevation or the risk of injury as a result of a falling object, so that the worker should be provided with adequate safety devices to prevent the gravity-related accident. Absent a foreseeability requirement, then, we leave owners and contractors with no reasonable way to determine when the statute applies and therefore when they are required to provide the safety devices enumerated therein. After all, an accident cannot trigger the extraordinary protections of Labor Law § 240 (1) merely because it is gravity-related. Otherwise, virtually every accident would fall within the purview of Labor Law § 240 (1 ), and defendants would never be able to forecast when safety devices are required. (R. 905-906) (internal citations omitted). 20 Justice Roman went on to explain that a foreseeability requirement is strongly rooted in this Court's precedent, and has been both implicitly and explicitly referenced throughout this Court's Labor Law §240(1) jurisprudence. (R. 906-912). Accordingly, Justice Roman notes that when determining whether the circumstances of a particular injury are within the scope of Labor Law §240(1 ), the appropriate inquiry should be as follows: [T]he pertinent and indeed dispositive inquiry is whether it was reasonably foreseeable at the outset that the task assigned to a worker exposed him/her to a gravity-related hazard, so that he/she should have been provided with one or more of the safety devices required by the statute. (R. 912) Though Appellants contend that Justice Roman ultimately erred in the manner in which he applied this test to the facts at bar, this standard is strongly supported by this Court's precedent and the purposes of the statute and should be expressly adopted by this Court in all cases under Labor Law §240(1). At a minimum, this Court's precedent requires that it be adopted in situations such as the case at bar, where a worker at ground level was injured by a "falling object" which was part of the pre-existing building structure as it appeared at the time the worker began his assigned task. Indeed, this Court has recently confirmed that in the context of falling objects, Labor Law §240(1) protection is not limited to situations where an object is in the process of being hoisted or secured, but that the 21 relevant inquiry is instead whether the object in question "required securing." See Outar v. City of New York, 286 A.D.2d 671, 730 N.Y.S.2d 138 (2d Dept. 2001); aff'd. 5 N.Y.3d 731, 832 N.E.2d 1186, 799 N.Y.S.2d 770 (2005); Quattrocchi v. F.J. Sciame Constr. Corp., 11 N.Y.3d 757, 859 N.Y.S.2d 396 (2008), aff'g 44 A.D.3d 377, 843 N.Y.S.2d 564 (1st Dept. 2007). While this Court has not expressly defined the circumstances under which an object "requires securing," a foreseeability requirement is implicit in this analysis, because otherwise, it is impossible to imagine an object which would not "require securing" for the purpose of the Labor Law. Indeed, by definition, every object which falls on a job site could not have been not properly secured, otherwise, it would not have fallen. Thus, simply demonstrating that an object fell can not possibly be sufficient to demonstrate that the object "required securing" for the purpose of the Labor Law. Accordingly, the Second Department has expressly held that in determining whether an object "requires securing," the relevant inquiry is foreseeability. In McLean v. 405 Webster Ave. Assoc., 98 A.D.3d 1090, 951 N.Y.S.2d 185 (2d Dept. 2012), the Second Department described the appropriate standard for determining whether an object "requires securing" under Labor Law §240(1) as follows: 22 An object needs to be secured if the nature of the work performed at the time of the accident posed a significant risk that the object would fall ... r w lhere a falling object is not a foreseeable risk inherent in the work, no protective device pursuant to Labor Law § 240 (l) is required. Id. at 1095-1096, citing Buckley v. Columbia Grammar, 841 N.Y.S.2d 249, 44 A.D.3d 263 (1st Dept. 2007). In Vasquez v. Urbahn Assoc. Inc., 79 A.D.3d 493, 496 (1st Dept. 2010), the First Department explained why a foreseeability requirement is particularly appropriate within the context of injuries caused by the collapse of pre-existing building structures: Since permanent structures ... are normally not expected to collapse or fail, work being performed thereon, much like work performed at ground level and not involving the hoisting or securing of materials, does not usually expose a worker to a gravity-related hazard. Accordingly, only if a defendant has reason to foresee that the permanent structure is likely to collapse, does it then have to comply with the mandates of Labor Law § 240 (1) by providing the safety devices enumerated therein. To hold otherwise ... nonsensically imposes liability upon a defendant when the work being performed does not expose a worker, at the outset, to a gravity related hazard; the hallmark of liability under Labor Law § 240 (1 ). I d. at 496 (1st Dept. 2010). Appellants respectfully request that this Court expressly adopt the foreseeability requirement set forth by Justice Roman and by the Second Department in all cases involving "falling objects," as it accurately reflects the 23 substance of this Court's precedent of applying Labor Law §240(1) only to gravity-related risks which are foreseeable. This principle is consistent with this Court's holdings in Misseritti and Narducci, supra. In Misseritti, summary judgment was appropriately granted to the defendants because there was nothing inherent in the task of sweeping the floor in front of the wall that would anticipate the possibility that the wall might fall over, and the plaintiff did not allege that any device "of the kind prescribed by the statute" could have prevented his injury. 86 N.Y.2d 487. Similarly, in Narducci, summary judgment was appropriate because there was nothing inherent in the task of removing a window frame that might anticipate the possibility of the glass in an adjacent window frame breaking loose and falling, and the plaintiff did not allege that there was any device "of the kind prescribed by the statute" which could have prevented his injury. 96 N.Y.2d 259. However, in Wilinski, summary judgment to the defendants was inappropriate because the plaintiff raised issues of fact as to both of those elements. 18 N.Y.3d 1. First, at the time his task was assigned to him, the plaintiff raised the concern that this particular undertaking, the demolition of adjacent walls, might cause parts of the completed building structure to dislodge and fall on to workers below, and it was therefore foreseeable that based on the nature of the task being performed, additional safety equipment was required. /d. at 5. Second, the 24 plaintiff alleged that there were specific safety devices "of the kind prescribed" by the statute, specifically "ropes" or ''blocks," which could have been implemented at the time the task was assigned in order to secure the pipes while the task was being completed. !d. Thus, the Court in Wilinski held that there were issues of fact precluding summary judgment to defendants because the nature of the work being performing made it foreseeable that the pipes could fall during that task, and because there were specific statutory devices of the kind prescribed by the statute which could potentially have implemented at the time to prevent his injury. !d. at 11. It is clear that the facts here fall squarely in line with the general rule set forth in Misseritti and Narducci that injuries caused by falling components of the pre-existing building structure are outside the scope of Labor Law §240(1 ), and that the factors present in Wilinski which distinguished it from the general rule are simply not present here. At the time Plaintiff was assigned the task of drilling new support holes for the conduit, 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. Thus, Appellants had no reason to foresee that any safety equipment beyond what was already present in the pre- existing building infrastructure would have been necessary for the task Plaintiff was performing. 25 Moreover, as noted in the Tom Dissent, "Plaintiff offered no rational explanation for disengaging the two securing devices before starting to drill the hole in the floor, rather than leaving the devices in place until he completed the drilling or removing the overhanging piece of conduit pipe before drilling." (R. 920). Indeed, Plaintiff does not allege that he was explicitly instructed to remove the underlying structural support for the conduit prior to drilling. Moreover, he does not allege that removing the underlying structural support was necessary in order to drill the new support holes; it was not. Instead, Plaintiff's only real justification for removing the underlying structural support prior to drilling is that he did not think that drilling into the floor underneath the conduit exposed him to any danger. When questioned on the issue, his testimony was as follows: (R. 272). Q: Did you take into account when you determined to go ahead and do the work that day the effect of the vibration or the drilling would have on the loosening of the coupling? A: I [didn't] think it would have an effect. He further noted that a compression coupling is strong enough to hold the weight of a conduit of this size, (R. 271 ), and that prior to drilling, he grabbed the conduit with his hand and it was "solid as a rock." (R. at 273). 26 Thus, Plaintiff's only "excuse" for his decision to dismantle the underlying structural support prior to drilling is that he thought that the coupling alone would have been sufficient to secure the pipe in place while he drilled underneath it. In other words, Plaintiff did not think it was foreseeable that his drilling into the floor would put him at risk of having the pipe fall on to him. If it was unforeseeable that that the act of drilling into the floor underneath the conduit presented a risk that the conduit would fall, then the conduit was not an object which "required securing" for the purpose of this undertaking. However, as noted in Point II, infra, if it was foreseeable that the compression coupling would be insufficient to hold the conduit in place while Plaintiff was drilling underneath it, then Plaintiff obviously should never have dismantled its underlying support, rendering that action the sole proximate cause of his injuries, and precluding him from recovery under Labor Law §240(1). Moreover, unlike the plaintiff in Wilinski, Plaintiff here has not presented sufficient evidence to raise an issue of fact in opposition to Appellants' prima facie showing. In Wilinski, it was not only foreseeable that the demolition of the surrounding walls might cause part of the pre-existing building structure (i.e. the pipes) to break off and injure someone, the plaintiff expressly foresaw it, and requested that his foreman put additional safety equipment in place to prevent the pipes from falling, a request which fell on deaf ears. ld. at 5. Here, Plaintiff 27 expressly acknowledged that he did not think that drilling new support holes was a task which could cause the conduit to come loose. (R. 255). Moreover, unlike the plaintiff in Wilinski, who alleged that additional securing devices (i.e. "ropes" and "blocks") "of the kind required by the statute" could have been put in place to protect him from the specific risk caused by the task assigned to him and prevented his injury, Plaintiff here merely alleged that the equipment which had been installed as part of the pre-existing building structure was insufficient to protect him from a gravity-related risk which did not even exist at the time such equipment was installed. Accordingly, the circumstances leading to Plaintiff's injury are outside the scope of Labor Law §240(1 ). Appellants are therefore entitled to summary judgment dismissing Plaintiff's Labor Law §240(1) claim. POINT II PlAINTIFF'S INJURY WAS CAUSED SOLELY BY HIS MISUSE OF THE SUPPORTS OF THE CONDUIT BY DISCONNECTING THEM The record establishes that Plaintiff's injuries were caused solely by his negligent conduct in dismantling the underlying structural support for the conduit before beginning to drill into the floor directly underneath it. It is well-settled that "[w]here a plaintiff's actions [are] the sole proximate cause of his injuries, ... liability under Labor Law § 240 (1) [does] not 28 attach." Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550, 554, 847 N.E.2d 1162, 814 N.Y.S.2d 589 (2006). "[I]f the Plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation." Blake v. Neighborhood Hous. Servs. of New York City, Inc., 1 N.Y.3d 280, 290,803 N.E.2d 757,771 N.Y.S.2d 484 (2003). Accordingly, in determining whether a plaintiff is entitled to recover under Labor Law §240(1), the necessary inquiry is whether a plaintiff's injury was caused by a statutory violation or by his own negligent conduct. Thus, the question before this Court is not simply whether the conduit was adequately secured at the time it fell; the predicate question is why the conduit was not adequately secured. Here, the record is clear that the only reason that the conduit was not adequately secured at the time Plaintiff began drilling into the floor was because Plaintiff personally unsecured it, which precludes him from recovery under the Labor Law. It is undisputed that at the time Plaintiff first approached the conduit as he began his assigned task that day, the conduit was firmly secured in place with a comprehensive system of structural support. It was secured vertically and laterally by kindorf support, was secured to the pencil box at its bottom by a metal connector, and was connected at its top to another conduit by compression coupling. (R. 255; 465-466). It is undisputed that this comprehensive system of 29 structural support was in place at the time Plaintiff began his work, and would have provided Plaintiff with proper protection from the risk of the conduit falling onto him while he drilled into the concrete floor. It was only after Plaintiff disengaged the conduit from its support that a risk of it falling arose. Though Plaintiff claims that Appellants should have foreseen and guarded against this risk, the Labor Law does not require protection against risks which are the sole consequences of Plaintiff's negligence. See, e.g. Broggy v. Rockefeller Group, 8 N.Y.3d 675, 870 N.E.2d 1144, 839 N.Y.S.2d 714 (2007) (Summary judgment awarded to defendants where Plaintiff's unnecessary decision to perform his work on top of a desk, rather than on the ground, was the sole reason that an elevation-related risk existed); Robinson, 6 N.Y.3d 550 (Plaintiff was sole proximate cause of his injury where he used the incorrect size ladder for a job despite the ready availability of larger ladders at the site); Blake, 1 N.Y.3d 280 (Plaintiff was sole proximate cause of his injury when he was provided with an adequate extension ladder but negligently failed to properly lock the extension clips in place). That the object which struck him was undisputedly secure at the time Plaintiff's work began is a dispositive factor which distinguishes the facts here from this Court's recent "falling object" jurisprudence. For example, in Outar v. City of New York, 286 A.D.2d 671, 730 N.Y.S.2d 138 (2d Dept. 2001); aff'd. 5 N.Y.3d 731, 832 N.E.2d 1186, 799 N.Y.S.2d 770 (2005), the plaintiff was 30 performing work on a subway track when "an unsecured dolly, which was used in his work and stored on top of a 'bench wall' that was 5Vz feet high and adjacent to the worksite, fell and hit him." 286 A.D.2d 671, 672, aff'd. 5 N.Y.3d 731. This Court affirmed the Second Department's award of summary judgment to the plaintiff under Labor Law §240(1), holding that the dolly was an object which "required securing," and that the defendants had failed to secure it at the time of the accident. /d. at 732. In granting summary judgment to the plaintiff, the Second Department expressly noted that the "defendants did not assert that the dolly was secured prior to the accident." /d. at 672. Therein lies the critical distinction between the facts of Outar and the facts here. Unlike the dolly in Outar, which had not been secured at the time Plaintiff began his work, the conduit here was in fact secure at the time Plaintiff began his work. Thus, in Outar, the object was not secured because the defendant failed to secure it; here, the object was unsecured because the plaintiff personally unsecured it. Accordingly, while in Outar, the elevation-related risk was present at the time the plaintiff began his work, here, the elevation-related risk did not exist until Plaintiff created the risk by dismantling the underlying support for the conduit. To further illustrate the dispositive nature of this factual distinction, one need only consider the potential outcome of Outar if the facts there were slightly different. Suppose that instead of "storing" the dolly by leaving it unsecured on 31 top of a bench wall with no protective equipment, as the defendant did there, the dolly had instead been firmly secured atop the bench wall and fastened in place with nylon straps and metal clamps when the plaintiff's work began. Suppose further that with the intention to use the dolly a few minutes later, the plaintiff had removed the metal clamps and taken off the straps that secured the dolly in place, leaving the dolly unsecured on top of the bench wall as he performed his work on the track below. Now suppose that the plaintiff then began performing work on the track below, and the now-unsecured dolly fell onto him. Surely, in that scenario, the plaintiff's Labor Law §240(1) claim would have been dismissed, because his injury would have been caused by his own affirmative act of unsecuring the dolly, rather than by any failure on the part of the defendant to secure it. This hypothetical, is, of course, nearly the precise scenario before the Court here, and aptly demonstrates why there can be no liability against Appellants here for purportedly failing to secure the conduit, because, quite simply, Plaintiff's negligent actions were the sole reason that the conduit became unsecure, the sole reason that an elevation-related risk was created, and the sole proximate cause of his injury. 32 POINT III ALL ISSUES RAISED IN THE INSTANT APPEAL ARE PROPERLY BEFORE THIS COURT The arguments raised in Points I and II, supra, are duly preserved for this Court's review. It is beyond dispute that the issue of whether the circumstances giving rise to Plaintiff's injuries were within the ambit of Labor Law §240(1) was directly presented to the trial and appellate courts. Indeed, Appellants argued to the trial court that Plaintiff failed to establish that his injury occurred "because of the absence or inadequacy of a safety device of the kind enumerated the statute," and that "no protections enumerated for the narrow class of risks in §240(1) would have prevented his accident." (R. 882). In a separate Memorandum of Law submitted to the trial court4, Appellants explicitly cited Miseritti and Narducci for the precise propositions for which they are cited herein. Moreover, while the term "foreseeability" was admittedly absent from the Appellants' moving papers and the trial court's decision, foreseeability is not, in itself, a separate issue before this Court. Instead, the concept of foreseeability is merely the reasoning behind Appellants' position on a question which was unquestionably preserved and squarely addressed in the trial court's opinion as follows: 4 This Memorandum of Law is not part of the Record on Appeal, but is in the trial court's file and can be readily supplied to this Court in a supplemental appendix upon request. 33 (R. 19). The question is instead whether the conduit "required securing" while plaintiff was drilling a hole in the floor beneath it (Outar, 5 N.Y.3d at 732). Liberally construing the statute to accomplish the purpose of protecting workers from gravity-related dangers, the answer is yes. In the instant brief, Appellants are merely arguing that foreseeability always has been a key consideration for courts in determining the issue whether a particular object "required securing" for the purpose of a particular task, and that both the trial and appellate court opinions here failed to properly apply this standard. Similarly, regarding the of issue of the proximate cause of Plaintiff's injury, the issue of the significance of Plaintiff's negligent conduct in creating an elevation-related hazard by removing the underlying support for the conduit was raised at both the trial and appellate levels. Although this argument was not the focal point of Appellants' arguments to the trial court, that is irrelevant to the issue of whether the argument was preserved for appellate review: the only question is whether the argument was raised to the trial court. Indeed, in Appellants' submissions to the trial court, Appellants explicitly argued that Plaintiff was precluded from recovery under Labor Law §240(1) because his injury "occurred as a result of an ordinary hazard of a workplace, which Plaintiff himself created." (R. 882) (emphasis added). Moreover, Appellants further argued that the actions Plaintiff took immediately prior to removing the conduit were negligent. (R. 39). 34 Thus, the issue whether Plaintiff's conduct was caused by a violation of the Labor Law or by his own negligent creation of an elevation-related risk was presented to the trial court, and Plaintiff therefore had a full and fair opportunity to contest this argument both at the trial and appellate levels. The fact that the trial court did not expressly address the significance of Plaintiff's allegedly negligent conduct in creating the hazard is of no moment here. A trial court's failure to adequately address a legal argument presented to it can not possibly be a basis for precluding appellate review; on the contrary, it is one of the primary reasons why appellate courts exist. This Court's recent decision in Hecker v. State, 2013 NY Slip Op 02105 (March 28, 2013) is readily distinguishable. In Hecker, this Court, over the sharp criticism of Judge Smith and Pigott, declined to review a determination of the Appellate Division, Fourth Department on the grounds the that the issue was not properly preserved. However, the circumstances of the Hecker litigation are readily distinguishable from the facts at bar, and all issues addressed by the Appellate Division and in this brief are properly preserved for this Court's review. In Hecker, the only issues raised by the parties at the trial level, and at the Appellate Division, Fourth Department, was whether a Labor Law §241(6) claim could be premised upon an alleged violation of 12 NYCRR 23-1.7 (d), which provides that an employer "shall not suffer or permit any employee to use a floor, 35 passageway, [or] walkway... which is in a slippery condition. Ice, snow, [and] water ... which may cause slippery footing shall be removed, sanded or covered to provide safe footing," in an accident where snow removal was an integral part of the plaintiff's work. Hecker v. State, 92 A.D.3d 1261, 1262, 937 N.Y.S.2d 815 (4th Dept. 2012). Despite this, the Fourth Department nonetheless decided the case based upon an issue which was not explicitly or implicitly addressed by the parties before the trial court or on appeal: the issue of whether the location of the plaintiff's injury was a "floor, passageway, [or] walkway." Id. Accordingly, this Court declined to review "either the Appellate Division's exercise of discretion to reach that issue, or the issue itself." Hecker, 2013 NY Slip Op 02105. As noted above, the facts here are distinguishable from the facts of Hecker, because all issues presently before this Court were raised by the parties at both the trial and appellate levels. Accordingly, all issues in Appellant's brief are properly before this Court. CONCLUSION Wherefore, for the foregoing reasons, Appellants respectfully request that this Court reverse the Order of the First Department in part and issue an Order granting summary judgment to Appellants dismissing Plaintiff's Labor Law §240(1) claim in its entirety, together with such other, further, and different relief as this Court deems just and proper. 36 Dated: New York, New York April15, 2013 David B. Franklin Attorneys for Defendants/ Appellants J.T. MAGEN CONSTRUCTION COMPANY, INC., NY-1095 AVENUE OF THE AMERICAS, L.L.C. s/h/a 1095 A VENUE OF THE AMERICAS, L.L.C. and DECHERTLLP 59- Maiden Lane, 39th Floor New York, New York 10038 (212) 972-1000 37