DANIEL v. FISCHIONE CONSTRUCTION CO INC (2002)

Supreme Court properly granted plaintiff's cross motion for partial summary judgment pursuant to Labor Law § 240(1).   Plaintiff, an employee of third-party defendant, Keith Ramsey Drywall Services, Inc. (Ramsey), was installing drywall in a room with a cathedral ceiling in a home owned by defendant-third-party plaintiff, Fischione Construction Co., Inc. (Fischione).  He was injured when he fell to the floor from atop two stacked drywall “walk-ups” that “fell out” from beneath him.  (Walk-ups are metal saddle horse benches with adjustable legs.)   Fischione had a nondelegable duty to plaintiff to “furnish or erect * * * scaffolding * * * ladders * * * and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed” (Labor Law § 240[1] ).   Plaintiff established his entitlement to judgment on liability under Labor Law § 240(1) as a matter of law by showing that the walk-ups failed to perform their function of supporting him (see, Smith v. Pergament Enters. of S.I., 271 A.D.2d 870, 871-872, 706 N.Y.S.2d 505), and it cannot be said that the failure of the walk-ups to give proper protection was not a proximate cause of plaintiff's injuries (cf., Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 960, 672 N.Y.S.2d 840, 695 N.E.2d 709, rearg. denied 92 N.Y.2d 875, 677 N.Y.S.2d 777, 700 N.E.2d 317).   Although Fischione presented evidence that plaintiff had been told not to use the stacked walk-ups, the court properly determined that plaintiff was not a recalcitrant worker.   That defense does not apply where, as here, plaintiff allegedly was “instructed to avoid an unsafe practice” (Akins v. Central N.Y. Regional Mkt. Auth., 275 A.D.2d 911, 912, 713 N.Y.S.2d 399;  see, Salotti v. Wellco, 273 A.D.2d 862, 709 N.Y.S.2d 733).

Finally, we conclude that the court properly granted the motion of Fischione seeking summary judgment on its claim for common-law indemnification against Ramsey.   Fischione established as a matter of law that it exercised only general supervisory authority over the worksite (see, Niethe v. Palombo, 283 A.D.2d 967, 968, 723 N.Y.S.2d 907;  Colyer v. K Mart Corp., 273 A.D.2d 809, 810, 709 N.Y.S.2d 758).

All concur except Burns, J., who dissents in part and votes to modify in accordance with the following Memorandum:  I respectfully dissent in part.   In my view, Supreme Court erred in granting plaintiff's cross motion for partial summary judgment on liability pursuant to Labor Law § 240(1).   Even assuming, arguendo, that plaintiff met his initial burden on the cross motion, I conclude that defendant and third-party defendant, Keith Ramsey Drywall Services (Ramsey), raised an issue of fact whether the actions of plaintiff were the sole proximate cause of his injuries (see, Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 960, 672 N.Y.S.2d 840, 695 N.E.2d 709, rearg. denied 92 N.Y.2d 875, 677 N.Y.S.2d 777, 700 N.E.2d 317;  see also, Sopha v. Combustion Eng'g, 261 A.D.2d 911, 911-912, 690 N.Y.S.2d 813).   According to Ramsey's foreman, he never instructed or advised plaintiff to stand on the walk-ups and in fact specifically instructed plaintiff not to use stacked walk-ups as a work platform.   In addition, it is uncontested that, at the time of plaintiff's accident, there was a scaffold, a step ladder and an extension ladder present in the room where plaintiff was working.   I therefore would modify the order by denying plaintiff's cross motion.

It is hereby ORDERED that the order so appealed from be and the same hereby is affirmed without costs.

MEMORANDUM: