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Orellano v. 29 East 37th Street Realty Corp.

Appellate Division of the Supreme Court of New York, First Department
Mar 26, 2002
292 A.D.2d 289 (N.Y. App. Div. 2002)

Summary

granting motion for summary judgment where plaintiff gave several possible explanations as to the cause of his fall from the ladder, including that the ladder shifted when he reached to affix a bolt and that "he may have simply lost his balance"

Summary of this case from Concepcion v. 333 Seventh LLC

Opinion

459-459A

March 26, 2002.

Order, Supreme Court, Bronx County (George Friedman, J.), entered November 9, 2000, which denied plaintiff's motion for partial summary judgment on liability pursuant to Labor Law Section 240(1) and denied the motion of third-party defendant Scala Construction Corp. for summary judgment dismissing the complaint, unanimously modified, on the law, to grant plaintiff's motion for summary judgment on liability pursuant to Labor Law Section 240(1), and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered June 6, 2001, denying third-party defendant's motion to reargue, unanimously dismissed, without costs.

EPHREM WERTENTEIL, for plaintiffs-appellants-respondents.

JEFFREY M. BURKHOFF, for defendants-respondents/third-party plaintiffs-respondents.

STEPHEN A. WEINSTEIN, for third-party defendant-respondent-appellant.

Before: Saxe, J.P., Rosenberger, Ellerin, Marlow, JJ.


Plaintiff Guillermo Orellano, a construction worker, was injured when he fell from an A-frame ladder while installing a light fixture as part of a renovation project at 29 East 37th Street. There were no apparent defects in the ladder, nor was the floor on which the ladder rested defective. There were no protective devices on the ladder that would have prevented plaintiff's fall. Orellano, who was alone when the accident occurred, gave several explanations as to what caused him to fall. The ladder may have shifted as Orellano reached to affix a bolt that was the furthest from where he was standing on the ladder, or his foot may have slipped from the ladder's rung, or he may have simply lost his balance.

Plaintiffs moved for partial summary judgment on liability under Section 240(1) of New York's Labor Law, which the motion court denied on the grounds that Orellano's renditions of how the accident occurred, as well as the possibility that his own negligence could be found by a jury to have been the sole proximate cause of his injury, rendered summary judgment inappropriate.

Third-party defendant, Scala Construction Corp. ("Scala"), also moved for summary judgment dismissing the complaint, contending that there could be no violation of Section 240(1) unless there was a defect in the ladder or a violation of the New York State Industrial Code. The motion court denied Scala's motion for summary judgment and, subsequently, its motion for reargument.

Regardless of the precise reason for his fall or whether Orellano acted negligently, or whether defendants were in complete compliance with the Industrial Code, Orellano is entitled to summary judgment on the Labor Law Section 240(1) claim.

New York's "Scaffolding Law," set forth in Section 240(1) of the State's Labor Law, imposes absolute liability on owners, contractors and their agents for injuries to workers engaged in "the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure," which result from falls from ladders, scaffolding, or other similar elevation devices that do not provide "proper protection" against such falls (Haimes v. New York Telephone Co. , 46 N.Y.2d 132; Beckford v. City of New York , 261 A.D.2d 158).

Scala's contention that plaintiff was required to show that the ladder from which he fell was defective in some manner or that defendants violated some rule of the Industrial Code is not the law. It is sufficient for purposes of liability under Section 240(1) that adequate safety devices to prevent the ladder from slipping or to protect plaintiff from falling were absent ( see,Dasilva v. A.J. Contracting Co. , 264 A.D.2d 214;Wasilewski v Museum of Modern Art , 260 A.D.2d 271;Schultze v. 585 West 214th Street Owners Corp., 228 A.D.2d 381).

Similarly, the motion court's denial of plaintiff's motion for summary judgment on liability under Section 240(1) on the ground that a jury might find Orellano's actions were the sole proximate cause of his injuries was error. As the Court of Appeals has instructed, where the owner or contractor has failed to provide adequate safety devices to protect workers from elevation-related injuries and that failure is a cause of plaintiff's injury, "[n]egligence, if any, of the injured worker is of no consequence." (Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 513; Zimmer v. Chemung County Performing Arts , 65 N.Y.2d 513, 524.)

In addition, possible discrepancies in Mr. Orellano's description of how or why he fell off the ladder are irrelevant since there is no dispute that his injuries were caused by his fall. Manna v. New York City Housing Authority ( 215 A.D.2d 335), which presented questions of whether plaintiff's injuries were caused by any violation of Section 240(1), is thus inapposite.

Plaintiffs are entitled, therefore, to summary judgment on liability under Section 240(1). Scala's appeal from the motion court's order denying Scala's motion to reargue the denial of its summary judgment motion should be dismissed as no appeal will lie from such an order ( see, MJ Trimming, Inc. v. Kew Management Corp. , 254 A.D.2d 21; see also, CPLR Section 5701[a][2][viii]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Orellano v. 29 East 37th Street Realty Corp.

Appellate Division of the Supreme Court of New York, First Department
Mar 26, 2002
292 A.D.2d 289 (N.Y. App. Div. 2002)

granting motion for summary judgment where plaintiff gave several possible explanations as to the cause of his fall from the ladder, including that the ladder shifted when he reached to affix a bolt and that "he may have simply lost his balance"

Summary of this case from Concepcion v. 333 Seventh LLC

granting motion for summary judgment where there were no defects in the floor on which the ladder was placed and where plaintiff gave several explanations as to the cause of his fall from the ladder, including that "he may have simply lost his balance"

Summary of this case from Arevalo v. 123 on the Park LLC
Case details for

Orellano v. 29 East 37th Street Realty Corp.

Case Details

Full title:GUILLERMO ORELLANO, ET AL., PLAINTIFFS-APPELLANTS-RESPONDENTS, v. 29 EAST…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 26, 2002

Citations

292 A.D.2d 289 (N.Y. App. Div. 2002)
740 N.Y.S.2d 16

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