Simply put, ice is not a risk that these devices are intended to protect against. As such, Labor Law §240 is inapplicable to accident in question. Moreover, there are clear questions of fact as to whether the Plaintiff-Respondent's own negligence and failure to abide by a safety-related command from his employer to refrain from working in the ice covered area was the sole proximate cause of the subject accident.

. The underlying plaintiff’s only claims against the City were for Labor Law §§ 240 and 241, which impose vicarious liability on owners and general contractors. (Id).

5 POINT I This Court Should Reverse the Holding That Labor Law § 240(1) Applies to This Accident, Which Resulted From a Slip on Ice While Wearing Stilts. The lower court incorrectly held that the plaintiff's claim, that he slipped on ice and fell while he was using stilts to install insulation in a ceiling, comes within the ambit of N.Y. Labor Law § 240(1), stating: Supreme Court properly concluded that plaintiff’s fall was the result of an elevation-related risk for which Labor Law § 240 (1) provides protection. Plaintiff alleged that he fell when his stilts slipped on ice while he was installing insulation at an elevated level, i.e., the ceiling. . . .

Simply put, ice is not a risk that these devices are intended to protect against. As such, Labor Law §240 is inapplicable to accident in question.

Appeal of the Appellant-Respondent Marc Nicometi This submission also opposes the plaintiff's appeal, which seeks reversal of the lower court’s correct holding that an issue of fact exists as to whether the plaintiff’s own conduct, in ignoring an instruction from his supervisor to avoid the ice—ice that he himself had complained about even before being so instructed—constitues the sole proximate cause of his accident. As demonstrated below in Point II, New York State Court of Appeals Nicometi v. Vineyards of Fredonia APL-2013-00280 November 25, 2013 Page 2 POINT I This Court Should Reverse the Holding That Labor Law § 240(1) Applies to This Accident, Which Resulted From a Slip on Ice While Wearing Stilts. The lower court incorrectly held that the plaintiff's claim, that he slipped on ice and fell while he was using stilts to install insulation in a ceiling, comes within the ambit of N.Y. Labor Law § 240(1), stating: Supreme Court properly concluded that plaintiff’s fall was the result of an elevation-related risk for which Labor Law § 240 (1) provides protection. Plaintiff alleged that he fell when his stilts slipped on ice while he was installing insulation at an elevated level, i.e., the ceiling. . . . Inasmuch as the stilts “failed while plaintiff was installing the [insulation on the ceiling]—work requiring the statute’s special protections” (Melber v 6333 Main St., 91 NY2d 759, 763-764), the court properly concluded that the statute applies to plaintiff’s section 240 (1) claim. Consequently, the court properly denied the cross motion. 107 A.D.3d at 1538 (emphasis added). Vineyards respectfully submits that the lower court, by focusing only on the passage from Melber quoted in its decision, misconstrued the holding of Melber, which however, with one exception, has been correctly understood and applied in other decisions of both that court (the Fourth Depart

Because there are no allegations that Schoeman is an owner or contractor of 551 Fifth Avenue, or an agent thereof, and there is no plausible claim that Schoeman contracted for the construction work, all claims against Schoeman for violations of Sections 200 or 241 must be Case 1:14-cv-02065-AJN Document 90 Filed 05/09/14 Page 63 of 71 49 dismissed. See, e.g., Guzman v. L.M.P. Realty Corp., 262 A.D.2d 99, (1st Dep’t 1999) (dismissing complaint alleging violation of Section 240 of Labor Law claim against lessees of property); Mangiameli v Galante, 171 App. Div. 2d 162, 574 N.Y.S.2d 842 (3d Dep’t 1991) (homeowner’s association not liable under N.Y. Labor Law Sections 240 or 241 because the association had no ownership interest in the property). 2.

Section 240 of the New York Labor Law imposes a non-delegable duty on property owners to provide specified safety devices. New York Labor Law § 240 (McKinney 2002); Haimes v. New York Tel. Co., 46 N.Y.2d 132, 412 N.Y.S.2d 863 (1978).

................ 12, 14 iii Pichardo v. Aurora Contractors, Inc., 29 A.D.3d 879, 815 N.Y.S.2d 263 (2nd Dept. 2006) .............................................. 20, 21 Quattrocchi v. F.J. Sciame Construction Corp., 11 N.Y.3d 757, 859 N.Y.S.2d 396 (2008), aff'd 44 A.D.3d 377, 843 N.Y.S.2d 564 (1st Dept. 2007) ................................................ 12, 14 Robinson v. East Medical Ctr., LP, 6 N.Y.3d 550, 847 N.E.2d 1162, 814 N.Y.S.2d 589 (2006) .................................................... 18 Vasquez v. Urbahn Assoc. Inc., 79 A.D.3d 493, 918 N.Y.S.2d 1 (1st Dept. 2010) ....................................................................... 10, 11 Wilinski v. 334 East 92 Housing Development Fund Corp., 18 N.Y.3d 1, 935 N.Y.S.2d 551, 959 N.E.2d 488 (2011) ........ 3, 17, 18 Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980) ..................................................................................... 23 STATUTES N.Y. Labor Law § 240(1) (McKinney 2009) .............................. passim 1 PRELIMINARY STATEMENT This brief is respectfully submitted by Defendants-Appellants 1095 Avenue of the Americas, LLC (“1095”), Dechert LLP (“Dechert”) and J.T. Magen Construction Company, Inc. (“Magen”) (collectively “Appellants”) in reply to the opposition brief of Plaintiff-Respondent Richard Fabrizi(“Plaintiff”), and in further support of Appellants’ request for this Court to reverse the decision of the Appellate Division, First Department in part, and issue an order granting summary judgment to Appellants dismissing all claims asserted against them.

C, 78 A.D.3d 1581, 913 N.Y.S.2d 435 (4th Dept. 2010) ........................................................................................3, 11, 14 McCoy v. Metropolitan Transportation Authority, 75 A.D.3d 428, 904 N.Y.S.2d 50 (1st Dept. 2010) .......................................................................14, 15 Mueller v. PSEG Power New York, Inc., 83 A.D.3d 1274, 922 N.Y.S.2d 588 (3d Dept. 2011) ......................................................3, 11, 14, 17, 18 Mulvihill v. Brooklyn Law School, 22 Misc.3d 1114(a) (Sup. Ct. Kings County 2009) ......................................................................................................13 Yellen v. Rockaway Realty Associates, L.P., 243 A.D.2d 338, 664 N.Y.S.2d 535 (1st Dept. 1997) ...........................................................................................14 STATUTES N.Y. Lab. Law § 200 (McKinney 2009)..............................................................4, 18 N.Y. Lab. Law § 240(1) (McKinney 2009) ..............................................................4 N.Y. Lab. Law § 241(6) (McKinney 2009)..................................................... passim CODES 12 NYCRR 23-2.2(a) .......................................................................................