Thomas J. O'Brien, Jr., Respondent,v.Port Authority of New York and New Jersey, et al., Appellants, Silverstein Properties, Inc., et al., Defendants.BriefN.Y.February 14, 2017To be Argued by: CHRISTOPHER SIMONE (Time Requested: 30 Minutes) APL-2015-00331 New York County Clerk’s Index No. 114853/10 Court of Appeals of the State of New York THOMAS J. O’BRIEN, JR., Plaintiff-Respondent, – against – THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY and TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, Defendants-Appellants, – and – SILVERSTEIN PROPERTIES, INC., LOWER MANHATTAN DEVELOPMENT CORPORATION, DURST 1 WTC CONSULTANT LLC, DURST 1 WTC DEVELOPER LLC, DURST 1 WTC LLC, THE DURST ORGANIZATION INC., THE DURST ORGANIZATION, L.P., THE DURST ORGANIZATION, INC., TISHMAN REALTY & CONSTRUCTION CO., INC., REGIONAL SCAFFOLDING & HOISTING CO., INC. and ATLANTIC HOISTING & SCAFFOLDING, LLC, Defendants. BRIEF FOR DEFENDANTS-APPELLANTS Of Counsel: CHRISTOPHER SIMONE ROBERT M. ORTIZ SHAUB, AHMUTY, CITRIN & SPRATT LLP 1983 Marcus Avenue Lake Success, New York 11042 Tel.: (516) 488-3300 Fax: (516) 488-2324 Appellate Counsel to: FABIANI COHEN & HALL, LLP Attorneys for Defendants-Appellants 570 Lexington Avenue, 4th Floor New York, New York 10022 Tel.: (212) 644-4420 Fax: (212) 207-8182 Date Completed: April 13, 2016 RULE 500.1(f) CORPORATE DISCLOSURE STATEMENT The Port Authority of New York and New Jersey is a body corporate and politic created by a compact between the States of New York and New Jersey with the consent of the Congress of the United States. Tishman Construction Corporation is a wholly-owned subsidiary of AECOM Technical Services, Inc. AECOM Technical Services, Inc. is a wholly- owned subsidiary of The Earth Technology Corporation (USA) and The Earth Technology Corporation (USA) is a wholly-owned subsidiary of AECOM Technology Corporation which is publicly traded. Tishman Construction Corporation of New York is a wholly-owned subsidiary of Tishman Construction Corporation. TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................... iv PRELIMINARY STATEMENT .................................................................... 1 JURISDICTIONAL STATEMENT ............................................................... 4 QUESTIONS PRESENTED FOR REVIEW ................................................. 5 STATEMENT OF FACTS ............................................................................. 6 A. The Accident and Action ...................................................................... 6 B. Summary Judgment Motions ................................................................ 7 1. Plaintiff’s Motion ....................................................................... 7 2. Defendants’ Motion and Opposition .......................................... 9 3. Plaintiff’s Reply and Opposition and Defendants’ Reply ........ 10 C. Supreme Court’s Decision .................................................................. 11 D. Appeal To, and Leave By, The Appellate Division ........................... 12 ARGUMENT POINT I PLAINTIFF’S LABOR LAW §240(1) CLAIM SHOULD BE DISMISSED BECAUSE HIS ACCIDENT AROSE FROM AN ORDINARY DANGER AT A CONSTRUCTION SITE, NOT A STATUTORILY CONTEMPLATED ELEVATION-RELATED RISK .............................................................................................................. 16 -ii- A. Labor Law § 240(1) Carries A Carefully Delineated Application ..... 16 1. The History & Purpose Of Section 240(1) .................................... 18 2. The Meaning of “Special Hazards” Created By “Gravity- Related” Risks ............................................................................... 19 B. Plaintiff’s Task Did Not Expose Him To A Physically Significant Elevation-Related Differential That Required Protective Devices .................................. 21 C. The Staircase At Issue Was Not A Safety Device Under Labor Law § 240(1) Because Plaintiff Was Using It Solely As A Passageway And Not A Tool For His Assigned Work ............. 24 1. That The Staircase Was Temporary And Not Permanent Does Not Automatically Trigger The Application Of Labor Law § 240(1) ...................................... 24 2. Labor Law § 240(1) Is Inapplicable To A Staircase Only Used As A Passageway .................................... 29 D. The Cases The Appellate Division Cited To Hold That The Staircase Was A Safety Device Are Distinguishable Or Otherwise Erroneous .................................... 33 E. To Determine Whether A Staircase Constitutes A Statutory Safety Device, The Workable Rule Should Examine Its Function In The Context Of The Accident .................... 37 POINT II SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR ON LABOR LAW § 240(1) WAS PRECLUDED BASED ON THE COMPETING EXPERT OPINIONS ABOUT WHETHER DEFENDANTS PROVIDED HIM WITH PROPER PROTECTION .................................... 41 -iii- A. Applicable Law ................................................................................... 42 B. The Adequacy Of A Safety Device Under Labor Law § 240(1) Is A Question Of Fact When It Does Not Collapse Or Malfunction ......................................................................................... 43 C. The Competing Expert Affidavits Not Only Raised Credibility Issues, But Sharply Conflicted About Whether Plaintiff Was Provided With Proper Protection Under Labor Law § 240(1) ........... 44 1. Plaintiff’s Expert Walter Konon, P.E. ........................................... 44 2. Defendants’ Expert David H. Glabe, P.E. ..................................... 47 D. Summary Judgment Is Precluded On This Record ............................ 50 CONCLUSION ............................................................................................. 55 -iv- TABLE OF AUTHORITIES Cases Barnes v. Park Cong. Church 145 A.D.2d 889 (3d Dep’t 1988) ............................................................. 29 Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc. 1 N.Y.3d 280 (2003) ......................................................................... passim Brennan v. RCP Assoc. 257 A.D.2d 389 (1st Dep’t 1999) ............................................................ 25 Broggy v. Rockefeller Group, Inc. 8 N.Y.3d 675 (2007) ................................................................................ 19 Cliquennoi v. Michaels Group 178 A.D.2d 839 (3d Dep’t 1991) ............................................................. 29 DeHaen v. Rockwood Sprinkler Co. 258 N.Y. 350 (1932) ................................................................................ 17 DePuy v. Sibley, Lindsay & Curr Co. 225 A.D.2d 1069 (4th Dep’t 1996) .......................................................... 28 DeStefano v. Amtad N.Y. 269 A.D.2d 229 (1st Dep’t 2000) ............................................................ 28 Ervin v. Consolidated Edison of New York 93 A.D.3d 485 (1st Dep’t 2012) ........................................................ 33, 36 Franks v. Meadolakes Development Corp. 256 A.D.2d 1141 (4th Dep’t 1998) .......................................................... 26 Gallagher v. Andron Const. Corp. 21 A.D.3d 988 (2d Dep’t 2005) ........................................................ passim -v- Griffin v. New York City Transit Auth. 16 A.D.3d 202 (1st Dep’t 2005) .............................................................. 38 Jackson v. Heitman Funds/191 Colonie LLC 111 A.D.3d 1208 (3d Dep’t 2013) ........................................................... 52 Jastrzebski v. North Shore Sch. Dist. 223 A.D.2d 677 (2d Dep’t 1996) ....................................................... 20, 21 Kavanaugh v. Marrano/Marc Equity Corp. 225 A.D.2d 1037 (4th Dep’t 1996) .......................................................... 28 Kropp v. Town of Shandaken 91 A.D.3d 1087 (3d Dep’t 2012) ............................................................. 54 McDonald v. UICC Holding, LLC 79 A.D.3d 1220 (3d Dep’t 2010) ............................................................. 31 McGarry v. CVP 1, LLC 55 A.D.3d 441 (1st Dep’t 2008) .................................................. 33, 34, 35 Milanese v. Kellerman 41 A.D.3d 1058 (3d Dep’t 2007) ............................................................. 25 Misseritti v. Mark IV Constr. Co. 86 N.Y.2d 487 (1995) .............................................................................. 20 Missico v. Tops Mkts. 305 A.D.2d 1052 (4th Dep’t 2003) .................................................... 28, 29 Monroe v. New York State Elec. & Gas Corp. 186 A.D.2d 1019 (4th Dep’t 1992) .......................................................... 26 Narducci v. Manhasset Bay Assoc. 96 N.Y.2d 259 (2001) .................................................................. 19, 20, 43 -vi- Nicometi v. Vineyards of Fredonia, LLC 25 N.Y.3d 90 (2015) ......................................................................... passim Nieves v. Five Boro A.C. & Refrig. Corp. 93 N.Y.2d 914 (1999) .............................................................................. 40 Ortiz v. Varsity Holdings, LLC 18 N.Y.3d 335 (2011) .............................................................................. 42 Ortman v. Logsdon 121 A.D.3d 1388 (3d Dep’t 2014) .......................................................... 52 Palacios v. 29th St. Apts., LLC 110 A.D.3d 698 (2d Dep’t 2013) ............................................................ 31 Paul v. Ryan Homes, Inc. 5 A.D.3d 58 (4th Dep’t 2004) ...................................................... 27, 28, 29 Quinones v. Olmstead Properties, Inc., 133 A.D.3d 87 (1st Dep’t 2015) ............................................................. 52 Ramirez v. Shoats 78 A.D.3d 515 (1st Dep’t 2010) .................................................. 37, 38, 39 Reisch v. Amadori Constr. Co. 273 A.D.2d 855 (4th Dep’t 2000) ...................................................... 28, 29 Rocovich v. Consol. Edison Co. 78 N.Y.2d 509 (1991) ............................................................ 17, 18, 19, 20 Ross v. Curtis-Palmer Hydro-Elec. Co. 81 N.Y.2d 494 (1993) ........................................................................ 19, 20 Runner v. New York Stock Exch., Inc. 13 N.Y.3d 599 (2009) ........................................................................ 20, 40 -vii- Ryan v. Morse Diesel, Inc. 98 A.D.2d 615 (1st Dep’t 1999) .................................................. 25, 30, 38 Salazar v. Novalex Contr. Corp. 18 N.Y.3d 134 (2011) .................................................................. 18, 19, 40 Salcedo v. Swiss Ranch Estates, Ltd. 79 A.D.3d 843 (2d Dep’t 2010) .............................................................. 30 Schreiner v. Cremosa Cheese Corp. 202 A.D.2d 657 (2d Dep’t 1994) ............................................................. 17 Scribner v. State 130 A.D.3d 1207 (3d Dep’t 2015) .................................................... 52, 53 Sillman v. Twentieth Century-Fox Film Corp. 3 N.Y.2d 395 (1957) ................................................................................ 42 Stallone v. Plaza Const. Corp. 95 A.D.3d 633 (1st Dep’t 2012) .................................................. 33, 36, 37 Straight v. McCarthy Bros. Co. 222 A.D.2d 775 (3d Dep’t 1995) ............................................................. 28 Suffolk County Dept. of Social Services on Behalf of Michael V. v. James M. 83 N.Y.2d 178 (1994) .............................................................................. 42 Vega v. Restani Const. Corp. 18 N.Y.3d 499 (2012) .............................................................................. 42 Wescott v. Shear 161 A.D.2d 925 (3d Dep’t 1990) ........................................... 26, 33, 35, 36 White v. Dorose Holding 216 A.D.2d 290 (2d Dep’t 1995) ............................................................. 17 -viii- Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp. 18 N.Y.3d 1 (2011) .................................................................................. 20 Williams v. City of Albany 245 A.D.2d 916 (3d Dep’t 1997) ....................................................... 25, 26 Other Authorities 12 NYCRR § 23-1.7 ..................................................................................... 12 CPLR 3212 ..................................................................................................... 7 CPLR 5602 ...................................................................................................... 4 CPLR 5713 .................................................................................................. 1, 4 Labor Law § 240 .................................................................................... passim BRIEF FOR DEFENDANTS-APPELLANTS PRELIMINARY STATEMENT Defendants the Port Authority of New York and New Jersey and Tishman Construction Corporation submit this brief in support of their appeal, upon leave of the Appellate Division, First Department pursuant to CPLR 5713 (R: 886), from a non-final, 4-1 Decision and Order of that court entered September 8, 2015 (131 A.D.3d 823) that, as relevant here, modified, on the law, an order of the Supreme Court, New York County (York, J.), dated July 11, 2013, by granting plaintiff’s motion for partial summary judgment on liability under Labor Law § 240(1) (R: 887-900), and otherwise affirming the denial of defendants’ motion for summary judgment to dismiss that claim. This appeal involves two main issues. The first is whether a Labor Law § 240(1) claim arises from a fall down a temporary staircase that is being used, not as a statutory safety device, but simply as a passageway to obtain a personal belonging. The second is, even if the staircase is considered a statutory safety device, whether competing expert affidavits on the adequacy of the staircase to provide proper protection precludes granting plaintiff partial summary judgment on the Labor Law § 240(1) cause of action. Defendants submit that (a) such a staircase being used solely as a passageway is not a safety device within the -2- ambit of § 240(1) and thus plaintiff’s slip and fall accident stemmed from an ordinary worksite hazard, but (b), even if the staircase was a statutory device, summary judgment in plaintiff’s favor was precluded on this record. Plaintiff commenced this Labor Law § 240(1) action after allegedly slipping and falling on a construction site outdoor, temporary steel staircase wet from rain. He was not working on the staircase at the time. Indeed, his work in the hours before his accident involved no heights whatsoever. Rather, plaintiff’s job was to maintain welding machines at ground level. At the time of the accident, plaintiff was using this outdoor staircase - despite an available interior one - to retrieve his rain jacket from a basement shanty. Despite that it had been raining on and off all day and plaintiff had been working since 6:00 a.m., he did not go to retrieve his rain jacket until approximately 8:00 p.m. Both sides moved for summary judgment. The motion court found that Labor Law § 240(1) may apply to plaintiff’s factual allegations and that neither side was entitled to summary judgment based on sharply conflicting expert affidavits on whether the staircase provided proper protection. Without ever inspecting the actual staircase or even an exemplar, plaintiff’s expert, who neglected to elaborate on his relevant experience, postulated that the steps were worn and too narrow and violated safety rules, which he failed to cite. By -3- contrast, defendants’ expert, an established specialist in construction site outdoor staircases and who inspected an exemplar of the exact same staircase, confirmed, among other things, that the staircase incorporated adequate traction features and met all industry standards. On appeal, however, the Appellate Division majority modified and awarded plaintiff partial summary judgment on this claim. Although acknowledging the experts’ dispute, the majority essentially reasoned that the fact of the accident itself established that the staircase failed to provide adequate fall protection. The lone dissenter, however, agreed with the motion court that the respective experts created a triable issue on whether a staircase with superior protection from slipping hazards could have been provided. If not, the dissenter correctly observed, then defendants complied with Labor Law § 240(1). The Appellate Division’s decision, if allowed to stand, will have a significant negative effect on New York’s Labor Law § 240(1) jurisprudence. First, the decision adopts a per se rule that under any circumstance a temporary staircase is an enumerated safety device, a fall from which necessarily constitutes a Labor Law § 240(1) violation. Second, the majority’s reasoning runs afoul of the longstanding, well settled rule that issues of fact, including competing expert opinions, are to be determined by a fact-finding jury. Last, the -4- decision eviscerates the requirement that a § 240(1) violation occurs only when the worker has been injured because of a gravity-related risk for which he has not been provided proper protection. In essence, the First Department’s reasoning holds that a worksite accident alone establishes a statutory violation and that only complete accident prevention can comply with § 240(1). This rationale transforms defendants into insurers of safety, an impossible standard, countering both this Court’s decisional law on the subject as well as the Legislature’s intention when it enacted Labor Law § 240(1). Accordingly, as detailed below, the Appellate Division’s decision should be modified to (a) grant defendants’ motion for summary judgment dismissing the Labor Law § 240(1) claim or (b) reinstate the motion court’s decision precluding summary judgment to either side on that cause of action. JURISDICTIONAL STATEMENT CPLR 5602(b)(1) provides that “[a]n appeal may be taken to the court of appeals by permission of the appellate division * * * from an order of the appellate division which does not finally determine an action[.]” By order entered December 10, 2015 pursuant to CPLR 5713 (R: 886) the Appellate Division, First Department granted defendants leave to appeal to this Court from its non-final, 4-1 Decision and Order entered September 8, 2015 -5- (131 A.D.3d 823), which, as relevant here, modified, on the law, an order of the Supreme Court, New York County (York, J.), dated July 11, 2013, denying plaintiff summary judgment on liability under Labor Law § 240(1) and granted his motion (R: 887), otherwise affirming the denial of defendants’ motion to dismiss that claim. The Appellate Division certified the question: “Was the order of the Supreme Court, as modified by this Court, properly made?” QUESTIONS PRESENTED FOR REVIEW 1. Whether plaintiff’s Labor Law § 240(1) claim should be dismissed because the subject staircase was not a safety device within the meaning of the statute? This question should be answered “Yes”, because at the time of the accident plaintiff was using the subject stairway only as a passageway to retrieve a personal belonging, not as a tool or device to complete his assigned task. Thus, his accident stemmed from an ordinary worksite peril, not a Labor Law § 240(1) violation. 2. Whether, assuming the staircase was a statutory safety device, issues of fact precluded granting summary judgment to either side? This question should be answered “Yes”, because of the conflicting expert affidavits on the issue of whether the staircase provided proper protection from slipping hazards. -6- STATEMENT OF FACTS A. The Accident and Action The salient facts are largely undisputed. On July 13, 2010, plaintiff Thomas J. O’Brien, Jr. was employed by DCM Erectors at the World Trade Center construction project (R: 180-181). He served as the relief crane operator and maintained the welding machines on the site (R: 181-183, 205). On that day, it had been raining on and off (R: 208). Despite working the entire day (from 6:00 a.m) without a rain jacket, at approximately 8:00 p.m. plaintiff exited the supply shanty to retrieve his rain jacket from the DCM Erectors’ shanty in the basement (R: 193, 210-212, 217, 234). He descended to the basement shanty, one flight down, using the scaffold tower staircase (R: 218, 226, 349- 356). The stairs were lit by artificial lights and were exposed to the elements (R: 221, 235, 226-227). He noticed that the steps were wet before descending them (R: 264, 283). Plaintiff claimed that as he stepped on the tread of the first step down, his foot slipped, causing him to slide down the stairs on his right leg to the next level, allegedly causing him injuries (R: 229-232, 236-237, 240, 256- 257). He did not know where on the step that his foot had slipped (R: 258), but circled the general area on a photograph at his deposition (R: 260-261, 356). -7- Plaintiff was attended to by the on-site nurse who iced his leg and wrapped it in an Ace bandage (R: 239-240). He then walked to the supply shanty and remained at work until his shift ended at 11:00 p.m. (R: 240-243). In November 2010, plaintiff commenced this action against defendants, alleging, among other things, a violation of Labor Law § 240(1) (R: 76, 116- 118). Defendants answered the complaint in February 2011 (R: 121-137). B. Summary Judgment Motions Plaintiff and defendants each sought summary judgment. Thus, their respective arguments in support and opposition essentially overlapped, as summarized in relevant part next. 1. Plaintiff’s Motion Plaintiff moved pursuant to CPLR 3212 for partial summary judgment on his Labor Law § 240(1) claim (R: 52). He acknowledged “that not every worker who falls from a scaffold or stairs or a ladder is entitled to summary judgment,” but maintained that he was entitled to summary judgment because “adequate safety devices to protect [him] from falling were absent” (R: 62 [emphasis in original]). Plaintiff contended that defendants failed to provide him with an adequate safety device because the stairs on which he fell were too narrow, too -8- steep, were worn down, lacked anti-slip measures and were wet due to rain, and did not provide him with secondary fall protection (R: 62-63). In support of his motion plaintiff proffered, among other things, the affidavit of professional engineer Walter Konon, P.E. (R: 624). After only generalizing his qualifications, Konon listed the items he reviewed as a foundation for his opinion, including the employer’s C-2 report; bills of particulars; plaintiff’s deposition transcript; the deposition of Tishman’s site Safety Manager, Dion Rivera; the deposition of Atlantic Hoisting & Scaffolding’s Hugh Ennis; and various photographs (R: 625). Significantly, Konon did not examine the subject stairs or even an exemplar. Despite having failed to inspect the staircase at issue, Konon opined, among other things, that the staircase was “not in compliance with good and accepted standards of construction site safety and practice” (R: 625). Konon believed the stairs were in a “slippery condition,” as they were exposed to the elements, the “treads [were] made of steel, which when wet have a tendency to become slippery and have a decreased coefficient of friction,” and the “stairs show[ed] obvious signs of longstanding use, wear and tear,” including to the “small round protruding nubs, which provide limited anti-slip protection” (R: 626-627). He further represented that the stairs were “smaller, narrower and -9- steeper than typical stairs,” which make them “more difficult to maintain safe and proper footing” (R: 627). Again, however, he never saw them. 2. Defendants’ Motion and Opposition Defendants opposed plaintiff’s motion (R: 631-671) and separately moved for summary judgment dismissing the Labor Law § 240(1) claim (R: 733-756). Defendants countered that plaintiff was not performing the type of work that called for the protective devices enumerated in Labor Law § 240(1) (R: 656- 666, 749-752). Rather, he was using the stairs as a passageway, not as a “tool” or “device” from which he performed his actual work (R: 658-662, 751). Plaintiff’s descending the stairway to retrieve his raincoat, defendants contended, had nothing to do with his assigned task of maintaining welding machines that were located at ground level (R: 632, 750-751). Thus, no Labor Law § 240(1) violation occurred. Defendants further countered that Konon, who is not a licensed engineer, failed to disclose his qualifications to render an opinion, which, in any event, was speculative as he never inspected the stairs or an exemplar, nor cited to any industry standard or record evidence to support his conclusions (R: 641-648). In stark contrast to Konon, both in opposition to plaintiff’s motion and in support -10- of their motion, defendants relied on affidavits of professional, licensed engineer David H. Glabe, P.E. (R: 674-683, 829-836). After relating his extensive experience with these types of staircases, Glabe opined that Konon’s opinion was conclusory and that plaintiff was provided with proper protection pursuant to Labor Law § 240(1) (R: 676-681, 834-835). Significantly, Glabe actually inspected an exemplar staircase of the same design as the one involved here (R: 677, 832). Among other things, he explained that the subject staircase is designed for use both indoor and outdoor, and thus incorporates special features on the treads – such as “perforated holes with raised nubs” – for traction in wet conditions (R: 832-833). In addition, the step height, width and depth as well as the handrails comported with industry standards and there was no evidence the treads were worn down (R: 833-834). 3. Plaintiff’s Reply and Opposition and Defendants’ Reply In reply and opposition (R: 702) plaintiff argued that the issues defendants raised “should not matter here, because what is clear is that Plaintiff fell and was not protected from that gravity related event” (R: 708). He thus contended that his mere allegation that the stairs were “narrow and steep” entitled him to summary judgment (R: 710). In addition, plaintiff asserted that denying his -11- motion based on his performing an ancillary activity of retrieving his rain coat would impermissibly limit the scope of Labor Law § 240(1) (R: 843-854). In reply, defendants countered that plaintiff’s work of maintaining welding machines never exposed him to any elevation-related risk under Labor Law § 240(1), nor was he required to use the exterior staircase as another stairway was available inside the building’s footprint just 75 feet away (R: 701, 871-878). C. Supreme Court’s Decision By a decision and order entered July 16, 2013 (R: 14-26), the Supreme Court, New York County (York, J.), as relevant here, denied both motions for summary judgment on the Labor Law § 240(1) claim. Relying on First Department cases, the court found that the temporary staircase was a statutory safety device (R: 23). But, the court found summary judgment was precluded based on issues of fact as to whether the temporary staircase provided proper protection, reasoning (R: 24): Based upon the above case law, Labor Law § 240(1) may apply to plaintiff’s factual allegations. However, it remains unclear as to whether the temporary stairwell, as well as the railing, provided proper protection for plaintiff. Furthermore, as previously discussed, the affidavits of both Konon and Glabe conflict as to the adequacy and safety of the temporary stairwell. Therefore, as there remains a question of fact as to whether proper protection was provided to plaintiff and whether Labor Law § 240(1) was violated, -12- plaintiff’s and defendants’ motions for summary judgment must be denied. D. Appeal To, and Leave By, The Appellate Division Both sides appealed to the First Department (R: 1-11). By Decision and Order entered September 8, 2015 (R: 887), the Appellate Division, with one Justice dissenting, modified the Supreme Court’s order “to grant plaintiff’s motion for summary judgment on his § 240(1) claim, and to deny plaintiff summary judgment on his § 241(6) claim as predicated on a violation of 12 NYCRR § 23-1.7(d)” (R: 887-890). The majority reasoned that (R: 888-890): Plaintiff is entitled to partial summary judgment on his Labor Law § 240(1) claim. As the dissent recognizes, plaintiff was engaged in a covered activity at the time he slipped and fell down the stairs of a temporary tower scaffold. A fall down a temporary staircase is the type of elevation-related risk to which section 240(1) applies, and the staircase, which had been erected to allow workers access to different levels of the worksite, is a safety device within the meaning of the statute (see McGarry v. CVP 1 LLC, 55 AD3d 441 [1st Dept 2008]; Westcott v. Shear, 161 AD2d 925 [3d Dept 1990], appeal dismissed 76 NY2d 846 [1990]). As we stated in Ervin v. Consolidated Edison of N.Y. (93 AD3d 485, 485 [1st Dept 2012]), involving a worker who fell when the temporary structure he was descending gave way, “It is irrelevant whether the structure constituted a staircase, ramp, or passageway since it was a safety device that failed to afford him proper protection from a gravity- related risk.” We are thus at a loss to comprehend the dissent’s reasoning that although the temporary staircase was a safety device and although it admittedly did not prevent plaintiff’s fall, there is nonetheless a factual issue which would defeat plaintiff’s -13- entitlement to partial summary judgement on his section 240(1) claim. The fact that the affidavits of plaintiff’s and defendant’s experts conflict as to the adequacy and safety of the temporary stairs does not preclude summary judgement in plaintiff’s favor. A plaintiff is entitled to partial summary judgment on a section 240(1) claim where, as here, stairs prove inadequate to shield him against harm resulting from the force of gravity, and his injuries are at least in part attributable to the defendants’ failure to take mandated safety measures to protect him against an elevation-related risk (see Stallone v. Plaza Constr. Corp., 95 AD3d 633 [1st Dept 2012]). Plaintiff’s expert opined, inter alia, that the stairs showed obvious signs of longstanding use, wear and tear; therefore, a decrease in anti-slip properties was to be expected. Given that it is undisputed that the staircase, a safety device, malfunctioned or was inadequate to protect plaintiff against the risk of falling, plaintiff is entitled to summary judgement, whatever the weather conditions might have been. In his comprehensive dissent, Justice Friedman noted that “[t]he parties’ conflicting expert affidavits raise a triable issue as to whether a staircase offering superior protection from slipping hazards could have been provided. If a factfinder determines that no better staircase could have been provided, there was no violation of Labor Law§ 240(1)” (R: 891). Thus, Justice Friedman reasoned, the issue was for the jury (R: 891-894): Plaintiff was an operating engineer at the Word Trade Center Freedom Tower construction site, responsible for maintaining the welding machines on site. He slipped and fell down a temporary steel staircase while he was attempting to descend to the supply -14- shanty to retrieve his raincoat. The construction site was outdoors and, at the time of the accident, the staircase was wet due to rain. In my view, the motion court correctly determined that neither side was entitled to summary judgment on plaintiff’s Labor Law § 240(1) cause of action. While the staircase in question was a safety device within the purview of section 240(1), the record, including the conflicting expert affidavits concerning the adequacy of the staircase under prevailing safety standards, gives rise to a question of fact as to whether the accident arose from a violation in the statute (see Blake v. Neighborhood Hous. Servc. Of N.Y. City, 1 NY3d 280, 288-290 [2003]; Ellerbe v. Port Auth. Of N.Y. & N.J., 91 AD3d 441, 442 [1st Dept 2012]). Contrary to the majority’s implication, the Court of Appeals has made clear that “a fall from a scaffold or ladder, in and of itself, [does not] result[] in an award of damages to the injured party [under section 240(1)]” (Blake, 1 NY3d at 288). Rather, to obtain summary judgment as to liability, a plaintiff suing under the statute “must establish that there is a safety device of the kind enumerated in §240(1) that could have prevented his fall, because liability is contingent upon the failure to use, or the inadequacy of such a device” (Ortiz v. Varsity Holdings, LLC, 18 NY3d 335, 340 [2011] [internal quotation marks and ellipsis omitted]). While the availability of a safety device that could have prevented the injury will generally not be an issue in cases where the safety device “collapse[d] or malfunction[ed] for no apparent reason” (Blake, 1 NY3d at 289 n 8), this is not such a case. Rather, the staircase at issue here naturally became wet when it rained (as was inevitable at an outdoor construction site), and the record contains conflicting evidence as to whether the staircase could have been designed to be less slippery in rainy weather or, if adequately designed, was too worn down to provide the intended level of protection from slipping. If, as averred by the defense expert, the staircase met prevailing safety standards and had not become defective due to wear and tear, there was no violation of section 240 (1) on which to predicate liability. While a defendant that has -15- violated the statute by failing to provide an adequate device cannot raise the plaintiff’s own negligence as a defense, “ ‘there can be no liability under section 240(1) when there is no violation and the worker’s actions (here, his negligence) are the “sole proximate cause” of the accident’” (Cahill v. Triborough Bridge & Tunnel Auth., 4NY3d 35, 40 [2004], quoting Blake, 1 NY3d at 290). The majority ignores Ortiz, in which the Court of Appeals made clear that a claim under section 240(1) does not lie where there is no available safety device that could have prevented the accident. That is precisely the question raised by the conflicting expert affidavits in this case, which differ over whether the subject staircase met prevailing safety standards. If it did, as maintained by the defense expert, the conclusion would be that the accident happened, notwithstanding the provision of appropriate safety devices, because there is simply no way to eliminate all danger of slipping on a wet surface at an outdoor construction site. If the staircase was adequate and the sole cause of the accident was the plaintiff’s failure to use due care in descending it when it was unavoidably wet, as a jury could find on this record, there would be no basis for imposing liability upon defendants under section 240(1). As broad as it is, section 240(1) does not make owners and contractors insurers against risks that even the provision of the best equipment cannot entirely eliminate. The dissent then quoted extensive portions of Glabe’s affidavit directly challenging the Konon’s opinions (R: 894-899), explaining that (R: 899-900): Manifestly, the foregoing expert evidence, when set against the expert evidence submitted by plaintiff on which the majority focuses exclusively, raises a triable issue as to whether the staircase in question afforded plaintiff adequate protection against slipping risks. Thus, defendants’ expert, through his affidavit, flatly contradicts the majority’s assertion that “it is undisputed that the staircase . . . malfunctioned or was inadequate to protect … against the risk of falling” (emphasis added). Again, that plaintiff fell does -16- not necessarily mean that there was something wrong with the staircase (see Blake, 1 NY3d at 288). Indeed, if the fall by itself indicated a statutory violation (as the majority seems to imply), there would be no reason for the majority to rely, as it does, on the affidavit of plaintiff’s expert. Since the majority ascribes significance to plaintiff’s expert evidence, it follows that defendants’ conflicting expert evidence raises a triable issue as to whether the staircase was an “adequate safety device” (Robinson v. East Med Ctr., LP, 6 NY3d 550, 554 [2006]). What the statute requires is an adequate safety device, not a device so perfect that the worker need not exercise due care on his own behalf – a standard that would be unattainable.* * * By order entered December 10, 2015, the Appellate Division granted leave to appeal to this Court, certifying the question: “Was the order of the Supreme Court, as modified by this Court, properly made?” (R: 886). Additional facts will be incorporated into the argument section below. ARGUMENT POINT I PLAINTIFF’S LABOR LAW §240(1) CLAIM SHOULD BE DISMISSED BECAUSE HIS ACCIDENT AROSE FROM AN ORDINARY DANGER AT A CONSTRUCTION SITE, NOT A STATUTORILY CONTEMPLATED ELEVATION-RELATED RISK A. Labor Law § 240(1) Carries A Carefully Delineated Application Labor Law § 240(1), entitled “Scaffolding and other devices for use of employees”, provides in pertinent part: -17- All contractors and owners and their agents * * * in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, 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 to a person so employed. Section 240(1) imposes absolute liability upon landowners and contractors for breaching their non-delegable duty to provide proper protection to workers from the “extraordinary” or “special” risks occasioned by elevation differentials. See Rocovich v. Consol. Edison Co., 78 N.Y.2d 509 (1991). While the statute “is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed . . . . a violation of the statute cannot ‘establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury.’” Id. at 513, quoting DeHaen v. Rockwood Sprinkler Co., 258 N.Y. 350 (1932). Consistent with these principles, it has been observed that “[i]n view of the strict liability imposed by Labor Law § 240(1), the statutory language must not be strained in order to encompass what the Legislature did not intend to include.” Schreiner v. Cremosa Cheese Corp., 202 A.D.2d 657, 658 (2d Dep’t 1994); see also White v. Dorose Holding, 216 A.D.2d 290 (2d Dep’t 1995). Indeed, this Court recently reaffirmed that Labor Law § 240(1) “should be construed with a -18- commonsense approach to the realities of the workplace at issue” and that courts should be “careful not to interpret the statute in an ‘illogical’ manner that ‘would be impractical and contrary to the very work at hand’”. Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 101 (2015), quoting Salazar v. Novalex Contr. Corp., 18 N.Y.3d 134, 140 (2011). 1. The History & Purpose Of Section 240(1) In Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 N.Y.3d 280 (2003), this Court provided an exhaustive analysis of the history and purpose behind Labor Law § 240(1) as aimed at protecting workers from circumstances dissimilar to those here. Specifically, its enactment in 1885 stemmed from “the Legislature’s concern over unsafe conditions that beset employees who worked at heights.” Id. at 284-285 (emphasis added). The apprehension arose from widespread accounts of workers falling to their deaths or suffering injuries from “rickety and defective scaffolds.” Id. at 285. From these concerns of gravity-related falls by workers evolved concerns over objects falling onto workers. Thus, in Rocovich, this Court examined “the nature of those occupational hazards which the Legislature intended should warrant the absolute protection that the statute affords” 78 N.Y.2d at 513 (emphasis in original). This Court observed that “[s]ome of the enumerated -19- devices (e.g., ‘scaffolding’ and ‘ladders’), it is evident, are for the use or protection of persons in gaining access to or working at sites where elevation poses a risk. Other listed devices (e.g., ‘hoists’, ‘blocks’, ‘braces’, ‘irons’, and ‘stays’) are used as well for lifting or securing loads and materials employed in the work.” Id. at 513-514. 2. The Meaning of “Special Hazards” Created By “Gravity-Related” Risks Consistent with these principles, in Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 (1993), this Court closely examined the meaning of section 240(1)’s “special hazards” and noted that they “do not encompass any and all perils that may be connected in some tangential way with the effects of gravity.” Ross, supra at 501; Nicometi, supra at 97. Instead, this Court has emphasized that “[l]iability under Labor Law § 240(1) depends on whether the injured worker’s ‘task creates an elevation-related risk of the kind that the safety devices listed in section 240(1) protect against.’” Salazar v. Novalex Contr. Corp., 18 N.Y.3d 134, 139 (2011), quoting Broggy v. Rockefeller Group, Inc., 8 N.Y.3d 675, 681 (2007). Thus, “[n]ot every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections -20- of Labor Law § 240(1).” Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267 (2001). Rather, the injuries must have resulted from “the direct consequence of a failure to provide” an adequate device of the sort enumerated in Labor Law § 240(1). Those devices are intended to protect “against a risk arising from a physically significant elevation differential” at a worksite. Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603 (2009) (emphasis added); see Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1 (2011); Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487 (1995); Ross, supra; Rocovich, supra. As the statute aims to protect workers from the pronounced risks arising from construction worksite elevation differentials, there will be no liability under Labor Law § 240(1) unless the accident is attributable to such a risk. See Runner, supra at 603; Rocovich, supra at 514. A § 240(1) violation may only be found where “plaintiff’s injuries were proximately caused by the lack of a safety device of the kind required by the statute.” Wilinski, supra at 11. In sum, there needs to be a “causal nexus between the worker’s injury and a lack or failure of a device prescribed by section 240(1).” Id. at 9, citing Misseritti, supra at 490-491. Thus, Labor Law § 240(1) “should not be implemented by decisional law in such a manner as to create a right of recovery not envisioned -21- by the legislature.” Jastrzebski v. North Shore Sch. Dist., 223 A.D.2d 677, 679 (2d Dep’t 1996) (citation omitted), aff’d. for reasons stated, 88 N.Y.2d 946 (1996). B. Plaintiff’s Task Did Not Expose Him To A Physically Significant Elevation-Related Differential That Required Protective Devices Plaintiff’s accident did not derive from a violation of Labor Law § 240(1). Rather, the accident arose from a usual and ordinary danger of a construction site, i.e. a slip and fall on water from rainfall on an external staircase being used as a means of passage and not as a safety device in connection with performing an assigned task. On the date of his accident, plaintiff was tasked with maintaining four portable welding machines at the construction site, two of which were located on the ground level and the other two were located on the top floor of the building under construction (R: 182-184, 187). His shift was to be from 6:00 a.m. to 11:00 p.m. (R: 193). He left for his dinner break around 3:00 p.m. (R: 200-201). When he returned from dinner, only the two portable welding machines on the ground level outside the building were in operation and needed to be maintained (R: 196, 205-206). At approximately 8:00 p.m., plaintiff went into his employer’s supply shanty located on the ground level on the east side of -22- the building to retrieve his backpack (R: 193, 210, 212). Oil, filters and other supplies were kept in that supply shanty (R: 215). He then exited the supply shanty to retrieve his rain jacket that was stored with his and other workers’ personal belongings in a different shanty (for the engineers [R: 235]) that was located in the building’s basement (R: 212-213). Significantly, while it had been “raining on and off throughout the day” (R: 208), plaintiff had not been wearing his rain jacket the entire day while he worked (R: 211). Thus, he clearly did not need his rain jacket to complete his assigned task. Rather, to stay dry, plaintiff would go inside the supply shanty “to get out of the rain” (R: 211). In order to reach the basement, plaintiff went to descend an exterior staircase (referred to at times as a “tower scaffold”, which consisted of a steel staircase with handrails [R: 687-690, 779-785]) near the supply shanty. He never used this staircase at all during the day prior to his accident (R: 218, 224, 228-229, 700). Indeed, plaintiff would only use the staircase “[m]aybe once a week” (R: 234). This exterior staircase served as a passageway between the ground level and the B-3 level (R: 700). Notably, this staircase was not the only passageway to that level (R:701). Rather, there were multiple interior staircases within the footprint of the building that provided such access and in fact, staircase “I” was a permanent concrete -23- staircase located inside the footprint of the building a mere 75 feet away from the subject exterior staircase (R: 701). Plaintiff was not working from the staircase at the time of his accident. Nor did his assigned task at the time, i.e. maintaining two welding machines at ground level, involve an elevation-related risk. Rather, he was simply retrieving his jacket. As he stepped down onto the first step, his right foot allegedly slipped off the wet tread, causing him to slide down the stairs to the bottom (R: 229-230, 232, 236). On a photograph at his deposition, plaintiff circled the area where he believes he stepped and placed an “X” and his initials where his body ended up after the fall (R: 260-261, 356-356A). After the accident, he “got right up,” walked back up the stairs and entered the supply shanty until his shift ended at 11:00 p.m. when he shut off the welding machines (R: 238-240, 242-243). As this Court noted in Nicometi, supra at 98-99 (citations and internal quotation marks omitted) (emphasis added): the relevant and proper inquiry is whether the hazard plaintiff encountered * * * was a separate hazard wholly unrelated to the hazard which brought about [the] need [for a safety device] in the first instance. This is because, regardless of the type of safety device involved, liability arises under Labor Law § 240(1) only where the plaintiff’s injuries are the direct consequence of an elevation-related risk, not a separate and ordinary tripping or slipping hazard. -24- Here, plaintiff contends that he was caused to slip and fall descending the staircase because it was wet and slippery from the rain (R: 230, 235-236, 264). As plaintiff’s accident resulted from an ordinary construction site slipping hazard occasioned by rain on a staircase being used as a passageway and not in connection with his work, Labor Law § 240(1) is inapplicable. C. The Staircase At Issue Was Not A Safety Device Under Labor Law § 240(1) Because Plaintiff Was Using It Solely As A Passageway And Not A Tool For His Assigned Work Contrary to the Appellate Division majority’s holding, the staircase here was not a safety device under Labor Law § 240(1) simply because it was a temporary staircase. At the time of his accident, plaintiff was not using it to perform work that entailed an elevation-related risk (R: 888, 892). Thus, the staircase could not be considered the functional equivalent of a ladder or scaffold. Rather, the staircase was merely being utilized by plaintiff as a passageway between two levels. 1. That The Staircase Was Temporary And Not Permanent Does Not Automatically Trigger The Application Of Labor Law § 240(1) At the outset, we note that whether the staircase was temporary (i.e. it would last during the construction only) as opposed to permanent should be of no moment. Here, the staircase was certainly not the equivalent of the “rickety -25- and defective scaffolds” that gave rise to Labor Law § 240(1). See Blake, supra at 285. Rather, this was a steel staircase that was properly designed for use in both indoor and outdoor construction settings where it could be exposed to the elements and it fully complied with good and accepted industry standards (R: 461, 687-688, 832-834). Moreover, as the First and Second Departments have held, the permanence of the structure is not dispositive. See Gallagher v. Andron Const. Corp., 21 A.D.3d 988, 989 (2d Dep’t 2005) (“[T]he distinction of permanent versus temporary is merely one aid in determining whether the device in question was a normal appurtenance to a building or a device to protect the worker from elevation-related risks or hazards.”); Brennan v. RCP Assoc., 257 A.D.2d 389, 391 (1st Dep’t 1999) (determinative criterion not permanence of structure), citing Ryan v. Morse Diesel, Inc., 98 A.D.2d 615 (1st Dep’t 1983). Despite the above, some Appellate Division decisions have improperly found that the distinction between a temporary and permanent staircase alone is dispositive. These cases hold that a stairway which is, or is intended to be, permanent cannot be considered the functional equivalent of a ladder or other “device” as contemplated by section 240(1). See e.g. Milanese v. Kellerman, 41 A.D.3d 1058 (3d Dep’t 2007); Williams v. City of Albany, 245 A.D.2d 916 (3d -26- Dep’t 1997); Monroe v. New York State Elec. & Gas Corp., 186 A.D.2d 1019 (4th Dep’t 1992). Conversely, a temporary staircase that is used for access to and from the upper levels of a house under construction is necessarily the functional equivalent of a ladder and falls under the designation of “other devices” within the meaning of Labor Law § 240(1). See Franks v. Meadolakes Development Corp., 256 A.D.2d 1141 (4th Dep’t 1998), citing Wescott v. Shear, 161 A.D.2d 925 (3d Dep’t 1990); Williams, supra. Indeed, the majority opinion in this case predicated its decision granting summary judgment under Labor Law § 240(1) on the fall having been down a “temporary staircase” (R: 888). The irrelevance of the distinction between a temporary and permanent stairway was cogently described by Justices Harvey and Weiss in a dissent in Wescott, supra (emphasis added): In our view, the stairway upon which plaintiff fell cannot be deemed to be one of the devices enumerated in Labor Law § 240(1) and was not a tool used in the performance of plaintiff’s work (see, Ryan v. Morse Diesel, 98 A.D.2d 615, 469 N.Y.S.2d 354). Instead, it was a passageway from one place of work to another, and an accident arising on such a passageway does not lie within the purview of Labor Law § 240(1) (see, id., 98 A.D.2d at 615–616, 469 N.Y.S.2d 354; see also, Barnes v. Park Cong. Church, 145 A.D.2d 889, 890–891, 536 N.Y.S.2d 224, appeal dismissed 74 N.Y.2d 650, 542 N.Y.S.2d 519, 540 N.E.2d 519; cf., Fiore v. MCT Constr. Corp., 112 A.D.2d 265, 491 N.Y.S.2d 713). Although the majority make[s] much of the fact that the stairway in question was a temporary and removable one instead of one permanently -27- installed, we believe no distinction should be made. Whether temporary or permanent, the subject stairway was actually being used as a passageway and was not, as argued by plaintiffs, functionally identical to a ladder (cf., McGurk v. Turner Constr. Co., 127 A.D.2d 526, 529, 512 N.Y.S.2d 71). Justice Harvey’s logic is inescapable. Here, plaintiff could have accessed the B-3 level via permanent staircase “I”, just 75 feet away and a slip and fall on water on those steps would only give rise to an ordinary negligence or Labor Law § 241(6) claim. By applying the irrelevant distinction between a permanent and temporary staircase the Appellate Division erroneously transformed the same type of slip and fall on water on the subject staircase to come under Labor Law § 240(1). Notably, the “temporary” nature of the staircase is really a misnomer given that the staircase was to be in place for a lengthy period of time during construction of a skyscraper, e.g. it was still in place more than a year after the accident (R. 381). As noted in Gallagher, supra at 989-990, there is no discernable rationale for arriving at such a different result. The Fourth Department has illustrated that the applicability of Labor Law § 240(1) to a non-enumerated device, such as a staircase or a plank, does not stand or fall based on the distinction between the item being temporary or permanent, but rather how the device at issue was utilized. See Paul v. Ryan Homes, Inc., 5 A.D.3d 58 (4th Dep’t 2004) (Opinion by Piggot, P.J.). There, -28- plaintiff was injured while carrying a five-gallon bucket of paint and attempting to enter a house under construction through the attached garage by using an unsecured plank. Id. at 59. The plank was approximately eight to ten feet long, twelve inches wide and served as a ramp between the garage floor and the threshold of the door to the house. Plaintiff was injured when the plank tipped and he fell to the concrete floor. Id. The issue on appeal was whether plaintiff’s fall from the unsecured plank triggered Labor Law §240(1). The Fourth Department noted that previous cases involving falls from planks came within one of two categories: those in which the plank was used as a passageway or stairway, and those in which the plank served as the functional equivalent of a scaffold or ladder. Id. at 60. Where the plank had been used as a passageway or stairway, Labor Law § 240(1) was found inapplicable. Id., citing Kavanaugh v. Marrano/Marc Equity Corp., 225 A.D.2d 1037 (4th Dep’t 1996); DeStefano v. Amtad N.Y., 269 A.D.2d 229 (1st Dep’t 2000); Straight v. McCarthy Bros. Co., 222 A.D.2d 775 (3d Dep’t 1995); DePuy v. Sibley, Lindsay & Curr Co., 225 A.D.2d 1069 (4th Dep’t 1996). On the other hand, when the plank had served as the functional equivalent of a scaffold or ladder, Labor Law § 240(1) applied. Paul, supra at 61, citing Missico v. Tops Mkts., 305 A.D.2d 1052 (4th Dep’t 2003); Reisch v. Amadori -29- Constr. Co., 273 A.D.2d 855, 856 (4th Dep’t 2000). Thus, the critical issue in determining the potential applicability of § 240(1) to a non-enumerated device, such as a staircase or plank, is how the item was utilized. In this case, the staircase was not erected to provide plaintiff with proper protection to perform his assigned task of servicing welding machines at ground level (R: 196). Indeed, plaintiff himself testified that he did not use the subject staircase “often,” but would only use it “[m]aybe once a week.” (R: 234). Clearly, the staircase was there simply to allow passage between levels at the worksite. As such, Labor Law § 240(1) is not applicable to the instant accident. 2. Labor Law § 240(1) Is Inapplicable To A Staircase Only Used As A Passageway In order for a non-enumerated device to fall under the purview of Labor Law § 240(1), it must be used as a tool in the performance of the work to protect the worker from an elevation-related risk, and not merely a passageway from one place of work to another. See Paul, supra at 61; Missico, supra at 1052-53; Cliquennoi v. Michaels Group, 178 A.D.2d 839, 840 (3d Dep’t 1991); Barnes v. Park Cong. Church, 145 A.D.2d 889, 890 (3d Dep’t 1988) (“The stairway was not a tool used in the performance of the plaintiff’s work.”). A stairway that is being used as a passageway in this respect does not constitute one of the -30- enumerated safety devices required to protect a worker from an elevation-related hazard. See Gallagher, supra at 990. In Ryan v. Morse Diesel, Inc., 98 A.D.2d 615 (1st Dep’t 1999), plaintiff, while carrying a bucket of bolts, stubbed his toe and fell while walking down a permanently installed but unfinished interior stairway of a hotel under construction. In dismissing the Labor Law § 240(1) claim, the First Department in Ryan, supra, at 615-16, reasoned that (emphasis added): The stairway was not a tool used in the performance of the plaintiff’s work. It was a passageway from one place of work to another. The distinction is critical. An accident arising on such a passageway does not lie within the purview of subdivision 1 of section 240 (Mizak v. Carborundum Co., 172 App Div 627). The appropriate statute is section 241, subdivision 6 (see Rosenbaum v. Lefrak, 80 A.D.2d 337). The Appellate Division, Second Department followed this reasoning in Salcedo v. Swiss Ranch Estates, Ltd., 79 A.D.3d 843 (2d Dep’t 2010). There, plaintiff was preparing to install insulation at a home being constructed on defendant’s property and fell and was injured when a set of stairs connecting the first floor of the home to the garage collapsed beneath him as he stepped onto it. The Second Department upheld the dismissal of the Labor Law § 240(1) claim since the stairs were being used as a passageway and “‘not being used as a ladder, scaffold, hoist or other safety device for the benefit of the injured -31- plaintiff in his work.’” Id. at 844 (citation omitted). See also, Palacios v. 29th St. Apts., LLC, 110 A.D.3d 698 (2d Dep’t 2013) (no Labor Law § 240[1] liability where fire escape ladder used as passageway as opposed to device for plaintiff’s work). The Third Department has also distinguished between a staircase being used as a tool in plaintiff’s elevation-related work as opposed to just a passageway between levels at a construction site. The Court in McDonald v. UICC Holding, LLC, 79 A.D.3d 1220, 1221 (3d Dep’t 2010) found Labor Law § 240(1) applicable to plaintiff’s fall from a staircase that had been partially dismantled such that the portion of it that extended towards the top of the building had already been removed. There, the staircase was no longer a passageway in the building and its remnants functioned as a scaffold to facilitate the work being performed in the demolition of an adjoining air shaft. Thus, the collapse of the staircase constituted a statutory violation. Here, no such work was being conducted from the subject staircase that could render it a safety device as opposed to a mere passageway. Plaintiff’s accident here is virtually indistinguishable from the accident in Gallagher v. Andron Const. Corp., 21 A.D.3d 988 (2d Dep’t 2005), where the Appellate Division determined that Labor Law § 240(1) was inapplicable. In -32- Gallagher, plaintiff was “injured when he fell while descending an outdoor stairway attached to a shanty on the roof of a building at a construction site at which he worked as a foreman,” while “returning from the shanty, which served as an office and storage facility for the project, when he slipped on snow and ice, fell over the side of the stairway, and landed on the ground below.” Gallagher, supra at 988-89. The Second Department reasoned (Gallagher, supra at 989-90) (emphasis added): the plaintiff contended that the stairway was temporary and therefore fell within the catchall phrase set forth in the statute of “other devices” requiring proper protection (Labor Law § 240 [1]; see e.g. Wescott v. Shear, 161 AD2d 925 [1990]). However, the distinction of permanent versus temporary is merely one aid in determining whether the device in question was a normal appurtenance to a building or a device to protect the worker from elevation-related risks or hazards (see Brennan v RCP Assoc., 257 AD2d 389 [1999]). It is undisputed that the stairway was attached and secured to the exterior of the building. Since the injury in question did not result from an elevation hazard contemplated to be protected by the statute, absolute liability pursuant to Labor Law § 240 (1) against the owner should not be imposed (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]; Kanarvogel v. Tops Appliance City, 271 AD2d 409, 410-411 [2000]). We discern no rationale for arriving at a different result had the plaintiff slipped on material on an interior stairway and fallen to the ground (see Barrett v Ellenville Natl. Bank, supra). The injury in question stemmed from an alleged failure to maintain the landing area and not from a failure to provide adequate elevation security to prevent a height-related hazard. -33- In the context of the facts present herein, the stairway in question was attached in a nonpermanent manner and thus constituted a passageway from one work area to another (see Brennan v. RCP Assoc., supra; Ryan v. Morse Diesel, 98 AD2d 615 [1983]). As a passageway the stairway did not constitute one of the enumerated safety devices required to protect a worker from an elevation- related hazard. Similarly here, plaintiff’s slip and fall on water arose from an alleged transient condition on the staircase he was utilizing as a mere passageway, not from a failure to provide him with adequate elevation security to prevent a height-related risk occasioned by his actual assigned work. Accordingly, Labor Law § 240(1) is inapplicable on these facts and that claim should be dismissed. D. The Cases The Appellate Division Cited To Hold That The Staircase Was A Safety Device Are Distinguishable Or Otherwise Erroneous In incorrectly finding that the staircase here was a “safety device” for purposes of Labor Law § 240(1), the Appellate Division relied upon McGarry v. CVP 1, LLC, 55 A.D.3d 441 (1st Dep’t 2008); Westcott v. Shear, 161 A.D.2d 925 (3d Dep’t 1990); Ervin v. Consolidated Edison of New York, 93 A.D.3d 485 (1st Dep’t 2012) and Stallone v. Plaza Const. Corp., 95 A.D.3d 633 (1st Dep’t 2012) (R: 888-889). These cases are either distinguishable or should not be followed as they fail to consider the critical issue of how the staircase was being used at the time of plaintiff’s injury. -34- Plaintiff in McGarry, was injured when the first block on an unsecured cinder block staircase leading from a platform supporting a material hoist to the concrete slab floor of the work site three feet below, skidded from under his foot. 55 A.D.3d 441. The First Department affirmed the grant of summary judgment to plaintiff on his § 240(1) claim, finding that “[a] fall down a temporary staircase is the type of elevation-related risk the statute was intended to cover, regardless of the distance the worker falls.” Id. McGarry is distinguishable from this case in several respects. First, it involved a makeshift cinderblock staircase that was the functional equivalent of a ladder and which collapsed. The cinderblock staircase in McGarry is analogous to the “rickety and defective scaffolds” referenced in Blake, supra at 285, that gave rise to Labor Law § 240(1). Conversely, here, the stable staircase that was designed for use in both indoor and outdoor construction and settings in full compliance with good and accepted industry standards (R: 687-688, 832- 834) and which was used merely as a passageway, did not constitute a safety device, nor did it collapse. McGarry is also distinguishable because the cinderblock staircase was not being utilized merely as a passageway between levels, but rather specifically for plaintiff to obtain his safety equipment needed to perform his work. Conversely, -35- plaintiff here was not using the subject stairway to retrieve any safety equipment required to perform his assigned task. To the extent that the motion court (R: 23) and Appellate Division (R: 888) inferred that plaintiff required his rain jacket to perform his work, this is belied by the record (R: 211). Indeed, it had been raining on and off throughout the day (R: 208) and yet, despite having been on site and working by maintaining the welding machines since 6:00 a.m., plaintiff did not retrieve his rain jacket until 8:00 p.m. when the accident occurred (R: 193, 211). Thus, reliance on McGarry was misplaced. In Wescott v. Shear, 161 A.D.2d 925 (3d Dep’t 1990), the court held that a temporary staircase constitutes a § 240(1) device when used for access to and from the upper levels of a house under construction and plaintiff was injured while carrying supplies on it. The majority explicitly found that the fact that the stairway was “temporary” distinguished the case from the court’s prior precedent holding that an accident on a “permanent” passageway from one place of work to another was not actionable under Labor Law § 240(1). Id. at 926. As noted in Point I-C(1) above, as the distinction between a temporary and permanent staircase is irrelevant, the Appellate Division’s reliance on Wescott was erroneous. Additionally, we submit that the dissent in Wescott -36- stated the appropriate rule, Wescott v. Shear, 161 A.D.2d at 926 (Weiss and Harvey, J.J., dissenting), that: * * * the stairway upon which plaintiff fell cannot be deemed to be one of the devices enumerated in Labor Law § 240(1) and was not a tool used in the performance of plaintiff’s work (see, Ryan v. Morse Diesel, 98 A.D.2d 615, 469 N.Y.S.2d 354). Instead, it was a passageway from one place of work to another, and an accident arising on such a passageway does not lie within the purview of Labor Law § 240(1) (citations omitted). Likewise misplaced was the majority’s reliance on Ervin v. Consolidated Edison of New York, 93 A.D.3d 485 (1st Dep’t 2012). In Ervin, plaintiff fell from a temporary structure that gave way when he was descending it to gain access to grade level from the top of a concrete wall approximately three feet high. Unlike here, the temporary structure in Ervin served as the functional equivalent of a ladder allowing plaintiff to access his specific work area and it collapsed. Thus, Ervin is also inapposite. Lastly, the Appellate Division’s reliance upon Stallone v. Plaza Const. Corp., 95 A.D.3d 633 (1st Dep’t 2012), where plaintiff fell from a crane ladder, was also misplaced. In Stallone, plaintiff crane maintenance worker’s job entailed climbing up and down the tower crane to ensure it was functioning safely and properly. See Stallone v. Plaza Const. Corp., No. 105940/2008, 2011 -37- WL 1841933 (Sup. Ct. N.Y. Cnty. May 9, 2011), aff’d as modified by 95 A.D.3d 633 (1st Dep’t 2012). The crane ladder in Stallone was an enumerated device that served as plaintiff’s sole means of access to his worksite. Conversely, here, the staircase was not an enumerated device and it was utilized by plaintiff only as a passageway to retrieve a personal item, not in connection with his actual tasked work. Additionally, the staircase was not the only means of access to the basement level. Rather, as attested to by Site Safety Manager Dion Rivera, “[t]here were multiple interior staircases within the footprint of the building that provided access to the B-3 level (R: 701). In fact, staircase “I” was a mere 75 feet away from the exterior staircase where plaintiff had his accident and could have been used to access the basement (R: 701). Thus, Stallone does not support the decision below finding that the staircase constituted a safety device under Labor Law § 240(1). E. To Determine Whether A Staircase Constitutes A Statutory Safety Device, The Workable Rule Should Examine Its Function In The Context Of The Accident In Ramirez v. Shoats, 78 A.D.3d 515 (1st Dep’t 2010), plaintiff was injured when a piece of corrugated metal covering the unfinished landing of a newly constructed stairway slipped under his feet, causing him to fall to the -38- basement level of a building under construction. The majority affirmed the denial of defendant’s summary judgment motion seeking dismissal of plaintiff’s Labor Law § 240(1) claim finding that it was unclear “whether the stairway was the sole means of descent and thus a safety device within the meaning of Labor Law § 240(1).” 78 A.D.3d at 516. But, it is Justice McGuire’s dissent in Ramirez that is instructive on this appeal. The dissent found that the First Department’s prior decision in Ryan, supra was controlling. Under that precedent, Labor Law § 240(1) is inapplicable where an accident occurs on a stairway not being used as a tool in the performance of the work, but rather as a passageway from one place of work to another. Ramirez, supra at 518 (McGuire, J., dissenting), citing Griffin v. New York City Transit Auth., 16 A.D.3d 202 (1st Dep’t 2005). Justice McGuire set forth an instructive factual scenario that presents a workable rule in these types of cases. He observed, Ramirez, supra at 519 (McGuire, J., dissenting): If the staircase here was being used by plaintiff in lieu of a scaffold and was the sole means of access to the elevation level required to perform his work, it may be that it could then be deemed a “safety device” within the ambit of § 240(1) (see Jones v. 414 Equities LLC, 57 A.D.3d 65, 866 N.Y.S.2d 165 [1st Dept.2008]). Given the -39- facts of this case, however, that question is not before us. Plaintiff was neither using the staircase to accomplish his work nor was it the sole means of ascent or descent to his work area. Rather, plaintiff was using the newly installed, permanent staircase as a passageway. “An accident arising on such a passageway does not lie within the purview of subdivision 1 of section 240. The appropriate statute is subdivision 6 of section 241” (Ryan, 98 A.D.2d at 616, 469 N.Y.S.2d 354 [citations omitted]). Thus, in cases involving a fall from a staircase at a construction site, the issue should not be whether the staircase was permanent or temporary. Rather, the critical and determinative issue should be how the staircase was being utilized at the time of the accident. If the staircase was being used to accomplish plaintiff’s actual work then it was serving as the functional equivalent of a ladder (when ascending or descending to the specific work area) or a scaffold (when serving as a platform from which to work) -- both enumerated devices. Under those circumstances, a staircase can constitute a safety device. Where a staircase is merely being utilized as a passageway at a construction site, however, it does not constitute a safety device and liability under Labor Law § 240(1) cannot ensue. Examining the staircase in terms of its use at the construction site at the time of the accident is the proper analysis. In particular, it employs a “commonsense approach to the realities of the workplace at issue” and avoids “interpret[ing] the statute in an ‘illogical’ manner that -40- ‘would be impractical and contrary to the very work at hand’”. Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 101 (2015), quoting Salazar v. Novalex Contr. Corp., 18 N.Y.3d 134, 140. Applying this test here, it is clear that plaintiff’s Labor Law § 240(1) claim should be dismissed. The staircase was not erected for his use in performing his specific task of maintaining the generators at the construction site. Nor was the staircase the sole means of access to a level where he was required to perform his assigned task. Rather, plaintiff utilized the staircase at the time of his accident as a simple passageway to a basement level where a personal item, unnecessary for his particular task, was located. Therefore, the staircase was not a “safety device” for purposes of Labor Law § 240(1). In sum, plaintiff’s injury was not a “direct consequence” of an elevation related risk. See Nicometi, supra, citing Runner, supra. Rather, his injury was caused by a “usual and ordinary danger[] at [the] construction site.” See Nicometi, supra, citing Nieves v. Five Boro A.C. & Refrig. Corp., 93 N.Y.2d 914, 916 (1999). To hold Labor Law § 240(1) applicable under these circumstances improperly expands the statute and renders defendant an insurer against all accidents. As noted by this Court previously, had the Legislature wanted to make owners and contractors insurers, it would have simply said so, -41- but instead it enacted no-fault workers’ compensation to address workplace injuries where there has been no Labor Law violation shown. See Blake, supra at 292. Accordingly, the decision of the Appellate Division, First Department should be modified to dismiss plaintiff’s Labor Law § 240(1) claim. Should this Court agree with the above, it need not reach the balance of this brief. POINT II SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR ON LABOR LAW § 240(1) WAS PRECLUDED BASED ON THE COMPETING EXPERT OPINIONS ABOUT WHETHER DEFENDANTS PROVIDED HIM WITH PROPER PROTECTION Even if this Court concludes that the staircase at issue constituted a safety device under Labor Law § 240(1), the Appellate Division order should still be modified to the extent it granted plaintiff summary judgment on that claim. As the motion court found, at the very least issues of fact prevail as to whether the staircase provided proper protection. Thus, on this record with sharply conflicting expert proof the Appellate Division should not have granted plaintiff partial summary judgment on liability under Labor Law § 240(1). -42- A. Applicable Law It is axiomatic that “[s]ummary judgment is a drastic remedy, to be granted only where the moving party has ‘tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact’.” Vega v. Restani Const. Corp., 18 N.Y.3d 499, 503 (2012), quoting Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339 (2011). “Summary judgment, of course, may only be granted in any proceeding when it has been clearly ascertained that there is no triable issue of fact outstanding; issue finding, rather than issue determination, is its function.” Suffolk County Dept. of Social Services on Behalf of Michael V. v. James M., 83 N.Y.2d 178, 182 (1994), citing Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957). “Summary judgment ‘does not deny the parties a trial; it merely ascertains that there is nothing to try’ (Siegel, N.Y.Prac. § 278, at 407 [2d ed.]).” Id. Furthermore, “[o]n a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party.” Vega, supra at 503 (internal citation and quotation marks omitted); Ortiz, supra at 340. -43- B. The Adequacy Of A Safety Device Under Labor Law § 240(1) Is A Question Of Fact When It Does Not Collapse Or Malfunction “The point of Labor Law § 240(1) is to compel contractors and owners to comply with the law, not to penalize them when they have done so.” Blake v. Neighborhood Hous. Services of New York City, Inc., 1 N.Y.3d 280, 286 (2003). As this Court observed in Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267 (2001), “[n]ot every worker who falls at a construction site, and not any object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240(1).” “Put differently, an accident alone does not establish a Labor Law § 240(1) violation or causation.” Blake, supra at 289. A correctly articulated in Justice Friedman’s dissent here (R: 892): a plaintiff suing under the statute “must establish that there is a safety device of the kind enumerated in section 240(1) that could have prevented his fall, because liability is contingent upon the failure to use, or the inadequacy of such a device” (Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 340, 937 N.Y.S.2d 157, 960 N.E.2d 948 [2011] [internal quotation marks and ellipsis omitted]).” The dissent further noted that the adequacy of a safety device that does not collapse or malfunction is a question of fact for a jury to resolve (R: 892-893): While the availability of a safety device that could have prevented the injury will generally not be an issue in cases where the safety device “collapse[d] or malfunction[ed] for no apparent reason” (Blake, 1 NY3d at 289 n 8), this is not such a case. -44- The instant circumstances do not involve a safety device that failed or collapsed, which itself presumptively would give rise to a § 240(1) violation. Therefore, contrary to the Appellate Division’s determination, summary judgment on liability is unavailable. C. The Competing Expert Affidavits Not Only Raised Credibility Issues, But Sharply Conflicted About Whether Plaintiff Was Provided With Proper Protection Under Labor Law § 240(1) In this case, the Appellate Division majority found it “undisputed that the staircase, a safety device, malfunctioned or was inadequate to protect plaintiff against the risk of falling” and, thus, “plaintiff is entitled to summary judgment, whatever the weather conditions might have been” (R: 890 [emphasis added]). This rationale manifestly ran afoul of summary judgment jurisprudence. As the dissent observed, the majority, while acknowledging the respective experts conflicted, “ignore[d] the two affidavits of the defense expert, David H. Glabe, P.E., opining that the staircase met applicable safety standards and was in good condition at the time of the accident” (R: 894). In addition, the majority ignored issues ripe for a jury concerning Konon’s qualifications and veracity. 1. Plaintiff’s Expert Walter Konon, P.E. In support of his summary judgment motion, plaintiff relied on an affidavit from Professional Engineer Walter Konon, whose suspect -45- qualifications and conclusions on their face precluded summary judgment. First, as explained in defendants’ motion and never reconciled by plaintiff, Konon’s curriculum vitae was never exchanged during discovery, despite defendants demands for it (R: 641-642, 673). Next, his affidavit sheds insufficient light on his background, offering only vague, boilerplate descriptions of his general expertise (R: 625-626). Indeed, conspicuously absent from that affidavit is even the suggestion that Konon is a licensed engineer. In addition, his “opinions” manifestly were speculative and conclusory. Most significantly, Konon concededly reached his conclusions here without ever having inspected the subject staircase or even an exemplar. Despite this critical omission, Konon nevertheless somehow averred, among other things, that the subject stairs were “not in compliance with good and accepted standards of construction site safety and practice” (R: 625). He believed the stairs were in a “slippery condition,” as they were exposed to the elements, the “treads [were] made of steel, which when wet have a tendency to become slippery and have a decreased coefficient of friction,” and the “stairs show[ed] obvious signs of longstanding use, wear and tear,” including the “small round protruding nubs, which provide limited anti-slip protection” (R: 626-627). He further postulated -46- that the stairs were “smaller, narrower and steeper than typical stairs,” which make them “more difficult to maintain safe and proper footing” (R: 627). Furthermore, Konon remarkably concluded that the steel “stairs and stair treads * * * when wet have a tendency to become slippery and have a decreased coefficient of friction, particularly under the circumstances here, where the stairs were worn and lacked proper and properly functioning anti-slip measures” (R: 626-627). He claimed that the “stair treads themselves are smaller than standard indoor or outdoor stairs, which are regulated by codes for the purpose of providing safe means of ascending and descending them”, yet cited no such codes. Konon further speculated that “it is the front most part of the stairs that is contacted by the worker’s foot” and thus “must provide slip resistance, if any, while descending the stairs, in order for them to be in compliance with good and accepted standards of safety on a construction site.” Again, without ever having seen the staircase at issue, Konon ventured that “[t]hese stairs show obvious signs of longstanding use, wear and tear and therefore a decrease in the anti-slip properties” and that “the primary friction/anti-slip measure that these stairs were equipped with are small round protruding nubs, which provide limited anti-slip protection, at best, and even less as they became worn down, as they were here” (R: 627). Lastly, he -47- additionally muddied the waters on his qualifications by offering the obviously tailored legal conclusion that “the stairs in these circumstances exposed the Plaintiff to an elevation related risk in that slipping caused him to fall down the stairs and sustain injury”; “[p]roper protective measures to guard against that risk were not taken here”; and “[t]he fact that Plaintiff fell under these circumstances, from an engineering and construction site safety perspective, establishes without question that the stairs were inadequate to prevent the Plaintiff from falling and that his fall was at least partially attributable to Defendants’ failure to conform and comply with good and accepted safety measures to protect him from the elevation related risks he was exposed to while using the stairs” (R: 626). Thus, contrary to New York law, Konon assumed the staircase as inadequate merely because plaintiff slipped. 2. Defendants’ Expert David H. Glabe, P.E. In stark contrast, defendants’ Professional Engineering expert David Glabe actually inspected an exemplar staircase in November 2012, and thus necessarily was in a better position than Konon to assess its composition (R: 677). Where Konon’s affidavit was devoid of any specific expertise relative to the issues in the case, Glabe detailed, among other things, his education, training experience with construction site fall protection, including the specific staircase -48- at issue here (R: 674-676). Moreover, unlike Konon, Glabe supplied his CPLR 3101(d) expert witness disclosure detailing his credentials, including his licensing as an engineer (R: 693-697). Overall, therefore, Glabe characterized Konon’s affidavit as “conclusory and speculative” (R: 676). Glabe submitted two affidavits, one in opposition to plaintiff’s motion in which he directly criticized Konon’s opinion and the other in support of defendants’ motion for summary judgment (R: 674, 684, 829). Notably, appreciating the obvious factual dispute generated by these affidavits, Justice Friedman’s dissent quoted extensive “portions of Mr. Glabe’s affidavits to demonstrate that, at the very least, defendants have raised a triable issue as to the adequacy of the safety features and condition of the staircase, bearing in mind that the elimination of all conceivable risk is not a humanly attainable standard” (R: 894-899). Specifically, in his affidavits Glabe averred “that the staircase is designed and manufactured so as to provide traction acceptable with industry standards and practice in times of inclement weather” (R: 688). This is so, he explained, because “[i]t is a known and accepted fact in the construction industry that much work and activity takes place outdoors and in times of inclement weather. The staircase involved in the alleged accident is designed for use in both indoor and -49- outdoor settings” (R: 687). Contrary to Konon’s postulation, Glabe found “no evidence to support an allegation that such a staircase was worn down as a result of foot traffic i.e., being stepped upon by construction boots whose souls [sic] are routinely made of rubber and/or leather” (R: 678). Unlike Konon, Glabe further confirmed that the staircase complied with applicable anti-skid safety measures “in that they are manufactured with perforated holes and raised metal nubs”; “[t]he perforated holes in the stairs serve the purpose of allowing water, rain and snow to pass through them”; and “[t]he raised metal nubs are specifically designed for traction and grip” (R: 688). Directly refuting Konon, Glabe explained that “[i]ndustry standards do not require the application of additional anti-skid protection to the steps” and that while Konon claims otherwise, “he fails to cite or reference any standard, code, rule or regulation that requires the application of anti-skid protection” (R: 688). Glabe noted that “[t]he explanation for his failure to do so is simple; there are no such rules, regulations, standards or codes” (R: 678). As for Konon’s opinion that the staircase was narrower and steeper than typical stairs, Glabe flatly disagreed (R: 688): Based upon my experience, my training and my knowledge, as well as my familiarity with the type of staircase involved in the alleged accident, the tread depth and width met good and acceptable -50- construction industry standards. Furthermore, the tread depth and width was [sic] of sufficient size such that anyone ascending or descending the stairs had adequate space to bear upon the tread surface. Based upon my experience, my training and my knowledge, as well as my familiarity with the type of staircase involved in the alleged accident, there is no evidence to support the allegation that the subject staircase was smaller, narrower and steeper than what is routinely and customarily used in the construction industry. As discussed next, upon juxtaposing the two expert affidavits, a sharper, more obvious factual dispute on the main issue in the case cannot be imagined. D. Summary Judgment Is Precluded On This Record Manifestly, as recognized by Justice Friedman, the parties’ respective expert’s affidavits raised issues of fact as to whether plaintiff was provided with proper and adequate protection under Labor Law § 240(1). Indeed, the majority here recognized that “[t]he affidavits of plaintiff’s and defendant’s experts conflict as to the adequacy and safety of the temporary stairs” (R: 889 [emphasis added]). Yet, the majority then erroneously concluded that plaintiff was entitled to summary judgment on his Labor Law § 240(1) claim. By doing so, the majority ignored the rules governing summary judgment by resolving a real factual dispute by adopting one expert affidavit and discounting the other. The majority also misapplied this Court’s precedent, thus turning Labor Law defendants into insurers for all risks encountered at a -51- construction site. See Blake v. Neighborhood Hous. Services of New York City, Inc., 1 N.Y.3d 280, 286 (2003) (“At no time, however, did the Court or the Legislature ever suggest that a defendant should be treated as an insurer after having furnished a safe workplace.”). Simply stated, under the majority’s rationale, nothing short of 100% accident prevention could comply with Labor Law § 240(1). That is not the law, however, as the mere happening of an accident does not give rise to statutory liability. See Blake, supra at 288-289. This is so because accidents happen even under the safest conditions. Furthermore, by adopting one expert over another finding this tower staircase violative of § 240(1) as a matter of law, the majority has effectively declared that there are no recognized types of stairs that can be used outdoors on a construction site in inclement weather. Yet, defendants’ expert averred that the stairs at issue are state of the art and safe. By arbitrarily resolving this dispute on summary judgment, the majority has created an untenable and unworkable rule. Indeed, there will be no possible way for owners or general contractors to provide the safest temporary staircase available for outdoor use without at the same time placing itself in jeopardy of violating Labor Law § 240(1). -52- Here, it is undisputed that the subject stairway did not collapse or malfunction. The competing expert affidavits take diametrically opposed positions as to whether the staircase was an adequate safety device pursuant to Labor Law § 240(1). Under such circumstances, such expert affidavits raise issues of fact as to whether a plaintiff was provided with an adequate safety device, precluding partial summary judgment under Labor Law § 240(1). See Quinones v. Olmstead Properties, Inc., 133 A.D.3d 87 (1st Dep’t 2015) (issue of fact due to conflicting expert affidavits on whether plaintiff provided with adequate safety devices); Scribner v. State, 130 A.D.3d 1207, 1209 (3d Dep’t 2015) (“The parties’ submissions also raise a question of fact as to whether the scaffolding afforded Scribner adequate protection and, if not, whether the absence of an appropriate safety device was the proximate cause of his injuries.); Ortman v. Logsdon, 121 A.D.3d 1388, 1390 (3d Dep’t 2014) (“Where an enumerated safety device has been furnished, whether such device afforded proper protection usually is a question of fact.”); Jackson v. Heitman Funds/191 Colonie LLC, 111 A.D.3d 1208, 1212 (3d Dep’t 2013) (Opinion by Stein, J.) (“Considering the conflicting evidence, questions of fact exist as to whether plaintiff’s injuries were proximately caused by the lack of a safety device of the -53- kind required by the statute to prevent summary judgment on the Labor Law § 240(1) claim.”) For example, in Scribner, supra, plaintiff was tasked with collecting pieces of roof tile that were removed by his coworkers from the roof of the State Capitol Building in the City of Albany that was being replaced. He fell from the building’s ledge onto a scaffold when he became “tangled up” in the pieces of roof tile. The Appellate Division found that the parties’ experts’ affidavits raised issues of fact as to whether plaintiff was provided with an adequate safety device. Specifically, the Appellate Division reasoned that (Id. at 1209-1210 [emphasis added][citations and footnote omitted]): Defendant’s expert opined that, because of the relatively short height differential, scaffolding was the only available safety device and that it functioned properly by preventing Scribner from falling over a hundred feet to the ground. In contrast, claimant’s expert asserted that the scaffolding, as erected, was inadequate, and that Scribner’s injuries could have been prevented if the scaffolding had been raised, a temporary railing had been added along the ledge or a temporary vertical barrier had been installed to prevent smaller tile pieces from accumulating in his walkway. In response, defendant’s expert maintained that the scaffolding was sufficient and specifically rejected each of the proposed alternatives, stating that a railing was unnecessary because the ledge and certain pillars served as such and that, among other things, a barrier was not necessarily safer because it would have reduced Scribner’s workspace. Inasmuch as these conflicting expert opinions and the uncertainty surrounding the height differential between the roof and the scaffolding create questions of fact, claimant’s cross -54- motion on the issue of defendant’s liability under Labor Law § 240(1) should have been denied[.] Likewise in Kropp v. Town of Shandaken, 91 A.D.3d 1087, 1088 (3d Dep’t 2012), plaintiffs’ expert safety professional opined that: the accident was caused by the use of improper hoisting equipment that failed to properly balance and secure the pipe, allowing it to slip unexpectedly in its bindings, drop downward at one end, and strike plaintiff. He opined that tag lines, hooks fitted with safety self-closing latches, and an 18-inch pipe clamp, among other things, should have been used. Defendant’s expert engineer, on the other hand, opined “that the hoisting mechanism was adequate and appropriate for the circumstances, and the accident occurred because plaintiff altered the balance of the load when he pushed on the pipe.” Id. at 1089. The Court found summary judgment for plaintiff precluded because “the conflicting expert opinions as to the adequacy of the hoisting equipment and the divergent testimony as to whether safety clips were present on the hooks, and whether the accident occurred because these hooks came loose, because the pipe slipped in its slings or because plaintiff altered its balance by pushing on it, pose issues of fact as to whether the absence or inadequacy of a safety device proximately caused plaintiff’s injuries.” Id. at 1090.