KEERDOJA v. LLC (2018)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered November 2, 2017, which denied plaintiff's motion for partial summary judgment as to liability on the Labor Law § 240(1) claim as against defendants Hudson Yards Construction LLC and Tutor Perini Building Corp. (collectively defendants), unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff was injured when a metal shim plate affixed to a steel column, that was being installed as part of a temporary truss system, suddenly detached and hit him in the head.  Plaintiff established that the accident was proximately caused by the undisputed failure of safety devices that were supposed to afford proper protection against the elevation-related risks that plaintiff faced during the installation of the column being hoisted into place (see Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 604, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009] ).  The tack welds used to secure the metal shim plate to the column were “safety devices” for the purposes of Labor Law § 240(1) because they were intended to be a temporary measure to keep the shim plate attached to the column during installation (compare Carlton v. City of New York, 161 A.D.3d 930, 933, 77 N.Y.S.3d 445 [2d Dept. 2018];  Honeyman v. Curiosity Works, Inc., 154 A.D.3d 820, 62 N.Y.S.3d 183 [2d Dept. 2017];  Timmons v. Barrett Paving Materials, Inc., 83 A.D.3d 1473, 920 N.Y.S.2d 545 [4th Dept. 2011], lv dismissed in part, denied in part 17 N.Y.3d 843, 930 N.Y.S.2d 538, 954 N.E.2d 1163 [2011] ).  The welds were to be removed once the column was in place, at which time the plates would be permanently bolted into place.  The evidence established that the accident occurred when the welds failed, inasmuch as the shim plate, which weighed between 200 and 400 pounds, was welded on only one side of the metal column (see Matthews v. 400 Fifth Realty LLC, 111 A.D.3d 405, 974 N.Y.S.2d 370 [1st Dept. 2013] ).  Thus, the shim plate “fell because of the inadequacy of a safety device ․ [that was] put in place as to give proper protection for” plaintiff, entitling him to partial summary judgment (Guallpa v. Leon D. DeMatteis Constr. Corp., 121 A.D.3d 416, 418, 997 N.Y.S.2d 1 [1st Dept. 2014] [internal quotation marks omitted];  see Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 N.Y.3d 658, 662–663, 985 N.Y.S.2d 416, 8 N.E.3d 791 [2014] ).

The motion court should have considered plaintiff's reply argument that the one-sided tack welds were insufficient to safely secure the shim plate to the column because it was made in response to defendants' opposition to the motion (see Rodriguez v. Weinstein Enters., Inc., 113 A.D.3d 483, 484, 978 N.Y.S.2d 204 [1st Dept. 2014] ).