George Newman, et al., Appellants,v.RCPI Landmark Properties, LLC, et al., Respondents.BriefN.Y.October 18, 2016APL-2015-00247 New York County Clerk’s Index No. 155632/12 Court of Appeals STATE OF NEW YORK GEORGE NEWMAN and JOANNE NEWMAN, Plaintiffs-Appellants, against RCPI LANDMARK PROPERTIES, LLC, TISHMAN SPEYER PROPERTIES, INC. and TISHMAN SPEYER PROPERTIES, L.P., Defendants-Respondents. >> >> REPLY BRIEF FOR PLAINTIFFS-APPELLANTS NAPOLI SHKOLNIK PLLC Attorneys for Plaintiffs-Appellants 1301 Avenue of the Americas, 10th Floor New York, New York 10019 212-397-1000 On the Brief: Joseph P. Napoli Annie E. Causey Date Completed: January 14, 2016 To Be Argued By: Annie E. Causey Time Requested: 15 Minutes i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii ARGUMENT IN REPLY .......................................................................................... 1 I. The Appellate Division Either Misconstrued Montgomery Or Montgomery Is Entirely Inapplicable To The Record Facts ........................... 1 II. Mr. Newman’s Use Of The Milk Crates As The Only Visible Means Of Descending The Platform Does Not Support A Finding As A Matter Of Law That He Is The Sole Proximate Cause Of His Injuries ........................... 3 III. Contrary to the Appellate Division’s Finding, Respondents Did Not Present Newman With A Choice As Between The Milk Crates And The Wall-Mounted Ladder .............................................................................. 5 CONCLUSION .......................................................................................................... 8 ii TABLE OF AUTHORITIES Cases Backiel v. Citibank, N.A., 299 AD2d 504 (2d Dept 2002) ....................................... 7 Baum v. Rowland, 281 A.D. 964, 120 N.Y.S.2d 620 ................................................ 7 Caspersen v. La Sala Bros., 253 N.Y. 491, 171 N.E. 754 ......................................... 6 Circosta v. 29 Washington Sq. Corp., 2 N.Y.2d 996, 163 N.Y.S.2d 611, 143 N.E.2d 346 ..................................................................................................... 7 Derdiarian v. Felix Contr. Corp., 51 NY2d 308 (1980) ............................................ 5 Garlichs v. Empire State Bldg. Corp., 3 N.Y.2d 780, 164 N.Y.S.2d 33, 143 N.E.2d 790 ..................................................................................................... 6 Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555 (1993) .............................................. 5 Kush by Marszalek v. City of Buffalo, 59 NY2d 26 (1983) ..................................... 5 Montgomery v. Federal Express Corp., 4 NY3d 805 (2005) ................................ 1, 2 Orellana v. Am. Airlines, 300 A.D.2d 638 (2d Dept 2002) ...................................... 3 Palen v. ITW Mortg. Invs. III, Inc., No. 99-CV-3850, 2003 WL 1907980 ................................................................................................................. 2 Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513 (1985) ........................................................................................... 2 Statutes Labor Law § 240 .................................................................................................... 1, 2 Labor Law § 240(1) ................................................................................................... 1 1 ARGUMENT IN REPLY I. The Appellate Division Either Misconstrued Montgomery Or Montgomery Is Entirely Inapplicable To The Record Facts. Respondent argues that “Newman requests that this Court apply the burden of proof under Labor Law § 240(1) to a traditional premises liability case[,]” that the case is inapplicable to the one before this Court, and that “the Appellate Division cited to Montgomery [only] as an example of a case in which the plaintiff’s conduct was found to constitute the sole proximate cause of his injuries.” Resp. Brf. at 13. However, a determination of whether a plaintiff is the sole proximate cause of his injuries under Labor Law § 240 necessarily involves an assessment of whether certain safety devises, such as ladders, were made “readily available” to the worker. If Montgomery is inapplicable to the instant case, the Appellate Division erred in relying upon Montgomery. If Montgomery is applicable, the Appellate Division misapplied it. Respondent describes Montgomery as inapplicable and unilaterally infers that the Appellate Division only used Montgomery to show an example of a fact pattern where the plaintiff is the sole proximate cause of his injuries as a matter of law. Respondent urges that the case is otherwise estranged to the one before this Court because Montgomery involved a duty of an employer pursuant to New York Labor Law to provide a safety device to a worker, and did not present a general 2 premises liability theory of proximate cause. Regardless of whether Respondent’s assertion is accurate, Montgomery yet favors Appellants. In order to determine whether a worker was the sole proximate cause of his injuries under Labor Law § 240, courts assess whether the employer breached its duty to the worker to make safety devices “readily available.” Montgomery and its progeny detail fact patterns where the employer did and did not breach its duty under § 240 regarding the ready availability of safety devices. Because proximate cause under § 240 mandates the analysis of “ready availability,” and thus the employer’s duty and whether it was breached under § 240, the Appellate Division’s reliance on Montgomery could not be just an example of “sole proximate cause” in a general premises liability case. If Montgomery is applicable, then the Appellate Division erred, for the reasons already argued and supported by settled law in Section I. of Appellants Brief. Additional cases adverse to the Appellate Court’s decision under Montgomery include, among many others, Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 524 (1985) (holding although “ladders were present at the worksite, ... none had been erected for plaintiff’s specific task”). The fact that ladders and other safety devices were hidden in a trailer will not absolve Defendants of liability; rather, Defendants must show that Plaintiff was provided with such safety devices. See, Palen v. ITW Mortg. Invs. III, Inc., No. 99-CV- 3 3850, 2003 WL 1907980, at *3, 2003; see also, Orellana v. Am. Airlines, 300 A.D.2d 638 (2d Dept 2002) (The mere presence of ladders somewhere at the work site does not establish that such devices were so placed as to give the proper protection required by the statute). II. Mr. Newman’s Use Of The Milk Crates As The Only Visible Means Of Descending The Platform Does Not Support A Finding As A Matter Of Law That He Is The Sole Proximate Cause Of His Injuries. Torres, as opposed to Montgomery, is a general premises liability case, which, as set forth in Point II of Appellants’ Brief, Torres presented an unforeseeable situation where a tenant used a paint bucket as a stepstool in her apartment, the floor of which was tilted or otherwise uneven. It was properly held that the tenant’s use of the bucket in that manner presented a situation that was unforeseeable and thus, the tenant’s act was considered a supervening unforeseeable independent one that severed the liability to the defendant. Here, it is reasonably foreseeable that a parked truck in the loading dock would render it impossible to see or even physically access the wall-mounted ladder, forcing people to find other, dangerous means to climb down from the loading dock. The record presents facts upon which it is indeterminable as a matter of law, as the IAS Court properly found, as to whether Mr. Newman’s use of the crates was unreasonable or unforeseeable. At least two persons, Mr. Newman and Mr. Rinaldi (his workmate), found it reasonable to use the crates 4 given that no other means to climb down from the platform was made available them. The IAS Court, Justice Rakower, stated at oral argument on Respondent’s motion for summary judgment: It is not whether or not there was any safe egress; there were these milk crates positioned as steps and I think it is a question of fact for the jury to determine whether or not the owners knew that the[] [crates] were there being used in that way; and whether or not they put them there; or whether truckers had put them there in their deliveries, and certainly that is information within the possession of defendants, because they monitor the video, and could have gone back an hour before this incident, look, that truck pulled in and it put those milk crates there, we had no way of knowing.” R. 389. There was no mention of whether or not there was any view of the video from prior to that to see when it was that milk crates originated as this place; both, who put them there and what they were used for, how long they were there, which, of course, is a question for a jury to determined notice of such condition.” Id. [T]here are facts that may exist from which a jury could conclude different things; and so the motion for summary judgment is denied.” R. 390. Even the Appellate Division recognized that whether Mr. Newman’s use of the crates was reasonable presented an issue of fact when it inquired of Mr. Newman’s counsel whether she would have used the stacked milk crates to descend the platform. Nonetheless, the Appellate Division still rendered a conclusion contrary to its implied admission that whether Mr. Newman’s actions were reasonable presented an issue not resolvable as a matter of law. 5 In order for a court to determine as a matter of law that a plaintiff’s act was unforeseeable, the act must be of such an “extraordinary nature… that responsibility for the injury may not be reasonably attributed to the defendant.” Kush by Marszalek v. City of Buffalo, 59 NY2d 26, 33 (1983); see Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 562 (1993). “Because questions concerning what is foreseeable ... may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve.” Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 315 (1980). There is simply no record support for the Appellate Division’s finding that Mr. Newman was the sole proximate cause of his injuries as a matter of law. It thus erred and this Court should reverse. III. Contrary to the Appellate Division’s Finding, Respondents Did Not Present Newman With A Choice As Between The Milk Crates And The Wall-Mounted Ladder. The Appellate Division held that “Plaintiff’s choice to use the crates rather than the ladder was the sole proximate cause of his injuries[,]” and that “[w]hether the ladder was visible behind the trucks that were parked in the area is irrelevant, since plaintiff testified that he did not look for another means of accessing the parking level” R. 394-395. The Appellate Division expressly found that Mr. Newman chose the crates over the ladder, and that this choice, combined with Mr. 6 Newman’s purported failure to look for another means of descent, obviated Respondent’s liability to Mr. Newman as a matter of law. It is unclear from its decision whether the Appellate Division relied upon Mr. Newman’s testimony that he did not per se look for a means other than the makeshift steps to descend the loading dock platform in reversing the IAS Court, and holding Mr. Newman solely responsible for his injuries as a matter of law. Assuming that the Appellate Division relied on the fact that Mr. Newman did not look for a means other than the stacked crates to descend the platform, this was in error. By so holding, the Appellate Division is creating a policy out of whole cloth that puts the onus on the person injured on another’s premises to seek out hidden means of traversing the premises, which is wrong. Settled law in New York holds just the opposite. It is the owner of the premises, not an invitee, trespasser, or employee’s who shoulders the burden to ensure that a dangerous condition does not exist on its premises. Where an employee, the owner of premises is charged with the duty to provide its employees (and the employees of independent contractors) with a safe place to work (see, Garlichs v. Empire State Bldg. Corp., 3 N.Y.2d 780, 782, 164 N.Y.S.2d 33, 143 N.E.2d 790; Caspersen v. La Sala Bros., 253 N.Y. 491, 494, 171 N.E. 754). An employee does not assume the risk of injury from defects or dangerous conditions in the premises which are outside the scope of that 7 employee’s work (see, Circosta v. 29 Washington Sq. Corp., 2 N.Y.2d 996, 163 N.Y.S.2d 611, 143 N.E.2d 346; cf., Baum v. Rowland, 281 A.D. 964, 120 N.Y.S.2d 620, citing Dittiger v. Isal Realty Corp., 290 N.Y. 492, 49 N.E.2d 980). A building owner’s duty to provide a safe place to work necessarily includes the duty to provide a worker with a safe means of ingress and egress to the building where the person works. See, Backiel v Citibank, N.A., 299 AD2d 504 (2d Dept 2002). It was not Mr. Newman’s duty to look for a means other than the pre- constructed crate steps, and the Appellate Division gave no legal basis in deciding that there was such a duty. It was Respondent’s duty to provide Mr. Newman with a safe means of ascending and descending the platform, which it failed to do. A wall-mounted ladder hidden behind a truck, a fact not in dispute, is not providing a worker with a safe means of egress and ingress. In either event, given that a person cannot choose something that the person does not know exists, nor should know exists, only in the counterfactual worked can it be said that Mr. Newman should have looked, and more critically, that he had a real choice as between the hidden wall-mounted ladder and the crates that were erected as steps. 8 CONCLUSION For the reasons discussed here, those set forth in Appellant’s Brief, and the record on appeal, the Decision and Order of the Appellate Division should be reversed, on the law, and this case should be remanded to Supreme Court, New York County, to proceed to trial. Dated: New York, New York January 14, 2016 Respectfully submitted, NAPOLI SHKOLNIK PLLC By: _________________________ Joseph P. Napoli Annie E. Causey 1301 Avenue of the Americas, 10th Fl. New York, New York 10019 Tel: (212) 397-1000 jnapoli@napolilaw.com acausey@napolilaw.com Attorneys for Appellants George Newman and Joanne Newman