BATLLE v. NY DEVELOPERS MANAGEMENT INC (2021)

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered August 26, 2019, which granted plaintiffs' motion for partial summary judgment on the Labor Law § 240(1) claim as against defendants N.Y. Developers & Management, Inc. and 317 St. Marks Avenue LLC (collectively defendants), unanimously reversed, on the law, without costs, and the motion denied.  Order, same court and Justice, entered November 4, 2019, which denied defendants' motion for summary judgment on their contractual indemnification claim against third-party defendant Big Apple Designers Inc. (Big Apple), unanimously reversed, on the law, without costs, and the motion granted.

Partial summary judgment on the Labor Law § 240(1) claim is precluded by issues of fact as to whether plaintiff's conduct was the sole proximate cause of his injuries.  Plaintiff alleged that less than a minute after he started performing work while standing on a scaffold platform without railings, the scaffold moved and he immediately fell to the floor.  He testified that a foreman had ordered him to perform that work without railings because the railings were being used by another company.  However, another foreman testified that 20 to 60 minutes before the accident, he instructed plaintiff to stop performing the work, get off the scaffold, and obtain the railings which allegedly were available.  Deposition testimony indicated that plaintiff, who required a Spanish interpreter, may not have fully understood the instructions given to him in English.  These conflicting accounts raised issues of fact as to whether defendant “has no liability under Labor Law § 240(1)” because plaintiff “(1) had adequate safety devices available, (2) knew both that the safety devices were available and that [he was] expected to use them, (3) chose for no good reason not to do so, and (4) would not have been injured had [he] not made that choice” (Biaca–Neto v. Boston Rd. II Hous. Dev. Fund Corp., 34 N.Y.3d 1166, 1167–1168, 121 N.Y.S.3d 753, 144 N.E.3d 363 [2020] [internal quotation marks omitted]).

No material issue of fact exists with respect to the conflicting accounts as to whether or not plaintiff locked the scaffold's wheels.  The scaffold was never tested after plaintiff's accident to see if the wheels had been locked and whether the brakes were functioning.

The court should have granted defendants' motion for summary judgment on their contractual indemnification claim against Big Apple.  Defendants made a prima facie showing that they were free of negligence since the accident was caused by the means and methods of the work, and defendants did not exercise supervisory control over the activity that caused the injuries (see Alvarado v. French Council LLC, 149 A.D.3d 581, 582, 50 N.Y.S.3d 280 [1st Dept. 2017];  Balbuena v. New York Stock Exch., Inc., 49 A.D.3d 374, 376–377, 853 N.Y.S.2d 330 [1st Dept. 2008], lv denied 14 N.Y.3d 709, 2010 WL 1794943 [2010]).  Big Apple failed to raise an issue of fact as to defendants' negligence;  Big Apple's argument that the scaffold could have moved because of a condition of the floor is speculative and unsupported by the record.