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Wise v. 141 McDonald Avenue

Appellate Division of the Supreme Court of New York, First Department
Sep 12, 2002
297 A.D.2d 515 (N.Y. App. Div. 2002)



September 12, 2002.

Order, Supreme Court, Bronx County (Howard Silver, J.), entered November 27, 2001, which denied plaintiff's motion for partial summary judgment on the issue of liability, pursuant to Labor Law § 240(1), unanimously reversed, on the law, without costs, and the motion granted.

JULIE MILLER, for plaintiff-appellant.

Before: Nardelli, J.P., Andrias, Friedman, Marlow, Gonzalez, JJ.

Plaintiff, a construction worker, was performing "layout" work on the second floor of a three-story building under construction at 141 McDonald Avenue, Brooklyn, New York, when he was injured. Defendant 141 McDonald Avenue, LLC is the owner of the property, and defendant P.L.P. Reconstruction Corp. was the general contractor.

Plaintiff maintains that the stairwells in the structure were marked out, but not yet in place, and that in order to get to and from the first floor to the second floor, the workers had to use a ladder. Plaintiff avers that the ladder was made of wood, was the length of the distance between the floors, and was leaning against concrete blocks on the second floor at an angle with the first floor, where it rested in the space marked out for a first-floor stairwell. Plaintiff contends that the ladder was unsecured and unanchored, had no footings, braces or treads, was not attached to any part of the structure, and there were no scaffolds, safety nets, belts, lines, planking or other devices for the workers' protection while using the ladder. Moreover, the ladder was not supported by a co-worker when plaintiff used it to get to and from his work-site on the second floor.

On September 15, 1999, at approximately 3:30 P.M., plaintiff alleges that he was descending the ladder from the second to the first floor and that when he stepped on the second rung from the top, the ladder suddenly shifted and tilted to the left, throwing him off balance, and causing him to fall 30 feet to the basement below.

Plaintiff was the sole witness to the accident. Defendant, in opposition to plaintiff's motion, relied on the deposition testimony of David Kleinman, the Vice President of defendant P.L.P. Reconstruction Corp., who testified that he used the ladder on numerous occasions and that it was the only means by which the workers could proceed from one floor to another; that the ladder did not have rubber feet, non-skid treads, or other safety devices; that the ladder was tied down "from time to time"; and that he heard about plaintiff's fall, via telephone, from a Joseph Lammica, a partner of defendant 141 McDonald, LLC, who, in turn, had received a telephone call from Louis, who was employed by a subcontractor. Kleinman, who conceded he had no idea how Louis found out about the accident, subsequently asked Louis how plaintiff fell. Louis purportedly explained that plaintiff's tool belt or bag got caught and when it came loose, it fell to the sub-ground level and that its weight caused plaintiff to fall with it.

The purpose of Labor Law § 240 is to protect workers by placing the "`ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor' (1969 N.Y. Legis. Ann., at 407), instead of on workers, who `are scarcely in a position to protect themselves from accident'" (Zimmer v. Chemung County Perf. Arts, 65 N.Y.2d 513, 520, quoting Koenig v. Patrick Constr. Co., 298 N.Y. 313, 318). Thus, Labor Law § 240(1) is to be construed as liberally as necessary to accomplish the purpose for which it was framed (Lombardi v. Stout, 80 N.Y.2d 290, 296; Kyle v. City of New York, 268 A.D.2d 192, 195, lv denied 97 N.Y.2d 608).

In Kijak v. 330 Madison Avenue Corp. ( 251 A.D.2d 152, 153), this Court held that "[w]here a ladder is offered as a work-site safety device, it must be sufficient to provide proper protection. It is well settled that failure to properly secure a ladder, to ensure that it remain steady and erect while being used, constitutes a violation of Labor Law § 240(1)" (see also Wasilewski v. Museum of Modern Art, 260 A.D.2d 271;Schultze v. 585 West 214th St. Owners Corp., 228 A.D.2d 381).

In this matter, plaintiff has clearly established a prima facie case for liability under section 240(1) and defendant, in opposition, has offered nothing more than mere speculation as to what might have occurred. Indeed, even if we were to accept defendant's speculative version of events, summary judgment would still be warranted in view of the lack of safety devices and equipment. Moreover, there is no evidence whatsoever to indicate that plaintiff's conduct was the sole proximate cause of the accident and, since liability under section 240(1) is absolute, rendering contributory negligence irrelevant (Angeles v. Goldhirsch, 268 A.D.2d 217; Wasilewski v. Museum of Modern Art, 260 A.D.2d at 271-272), partial summary judgment on the issue of liability should have been granted. We further note that the fact that plaintiff was the sole witness to the accident does not prelude summary judgment on his behalf (Cruz v. Turner Constr. Co., 279 A.D.2d 322, 323; Klein v. City of New York, 222 A.D.2d 351, 352, affd 89 N.Y.2d 833).


Summaries of

Wise v. 141 McDonald Avenue

Appellate Division of the Supreme Court of New York, First Department
Sep 12, 2002
297 A.D.2d 515 (N.Y. App. Div. 2002)
Case details for

Wise v. 141 McDonald Avenue

Case Details


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

Date published: Sep 12, 2002


297 A.D.2d 515 (N.Y. App. Div. 2002)
748 N.Y.S.2d 539

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