ARTOGLOU v. GENE SCAPPY REALTY CORP (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Martin, J.), dated December 1, 2006, as denied his motion for summary judgment on the issue of liability on his Labor Law § 240(1) cause of action, and granted those branches of the defendants' cross motion pursuant to CPLR 3211(a)(7) which were to dismiss his cause of action alleging a violation of Labor Law § 241(6) for failure to state a cause of action, and for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the defendants' cross motion which were for summary judgment dismissing the plaintiff's causes of action alleging a violation of Labor Law § 200 and common-law negligence, and substituting therefor a provision denying those branches of the cross motion;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff allegedly was injured when he fell off an approximately 20-foot long ladder he was using to access the roof of the defendants' building.   Although the parties dispute the extent of the work that the plaintiff was requested to perform and did perform, it is uncontested that he was hired, inter alia, to apply an aluminum coating over the entire 20,000-square foot roof.   The purpose of the coating, which the defendants' expert described as “a smooth liquid-applied surface coating containing an aluminum pigment for reflectivity,” was to protect the roof from water damage and to reflect sunlight to lower the temperature of the building.   According to the expert, it is applied by “[p]our[ing] the correct amount ․ to cover a given area and work[ing] it in one direction,” with a “mop, roofing brush, or squeegee.”

 Contrary to the defendants' contention, the application of this substance, which their representative referred to as “reflective paint” or “silver paint,” was the functional equivalent of painting.   Painting is a protected activity that “need not [be] incidental to the other listed activities such as construction, repair, or alteration, to be covered” by Labor Law § 240(1) (Rivers v. Sauter, 26 N.Y.2d 260, 262, 309 N.Y.S.2d 897, 258 N.E.2d 191;  see Joblon v. Solow, 91 N.Y.2d 457, 464-465, 672 N.Y.S.2d 286, 695 N.E.2d 237;  Loreto v. 376 St. Johns Condominium, Inc., 15 A.D.3d 454, 454-455, 790 N.Y.S.2d 190;  De Oliveira v. Little John's Moving, 289 A.D.2d 108, 734 N.Y.S.2d 165;  Cornacchione v. Clark Concrete Co., 278 A.D.2d 800, 801, 723 N.Y.S.2d 572).   Therefore, the plaintiff was engaged in a covered activity at the time of the accident.

 However, there are triable issues of fact as to whether the accident was caused by a violation of Labor Law § 240(1).  “[A] fall from [a] ladder, by itself, [i]s not sufficient to impose liability under Labor Law § 240(1)” (Xidias v. Morris Park Contr. Corp., 35 A.D.3d 850, 851, 828 N.Y.S.2d 432;  see Olberding v. Dixie Contr., 302 A.D.2d 574, 757 N.Y.S.2d 565;  Williams v. Dover Home Improvement, 276 A.D.2d 626, 627, 714 N.Y.S.2d 318). Rather, there must be evidence that the subject ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff's injuries (see Xidias v. Morris Park Contr. Corp., 35 A.D.3d at 851, 828 N.Y.S.2d 432;  Olberding v. Dixie Contr., 302 A.D.2d at 574, 757 N.Y.S.2d 565;  Williams v. Dover Home Improvement, 276 A.D.2d at 627, 714 N.Y.S.2d 318;  Zgoba v. Easy Shopping Corp., 246 A.D.2d 539, 540, 667 N.Y.S.2d 426;  see generally Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287, 771 N.Y.S.2d 484, 803 N.E.2d 757).

On this record, it cannot be concluded, as a matter of law, that the defendants failed to provide the plaintiff with proper protection or that any alleged failure to provide and properly place adequate safety devices proximately caused his injuries (see Delahaye v. Saint Anns School, 40 A.D.3d 679, 682, 836 N.Y.S.2d 233;  Xidias v. Morris Park Contr. Corp., 35 A.D.3d at 851, 828 N.Y.S.2d 432;  Reborchick v. Broadway Mall Props., Inc., 10 A.D.3d 713, 714, 781 N.Y.S.2d 899;  Olberding v. Dixie Contr., 302 A.D.2d 574, 757 N.Y.S.2d 565;  Williams v. Dover Home Improvement, 276 A.D.2d at 627, 714 N.Y.S.2d 318).

 The Supreme Court did not err in dismissing the plaintiff's cause of action alleging a violation of Labor Law § 241(6) because the Industrial Code provisions cited by the plaintiff are inapplicable to the facts of this case (see Delahaye v. Saint Anns School, 40 A.D.3d at 685, 836 N.Y.S.2d 233;  Ferrero v. Best Modular Homes, Inc., 33 A.D.3d 847, 851, 823 N.Y.S.2d 477;  Singleton v. Citnalta Constr. Corp., 291 A.D.2d 393, 394, 737 N.Y.S.2d 630).   The ladder at issue was not used as “a regular means of access between floors or other levels in [any] building [or structure]” (12 NYCRR 23-1.21[b][4][i] [emphasis added];  see Arigo v. Spencer, 39 A.D.3d 1143, 1145, 834 N.Y.S.2d 805;  Spenard v. Gregware Gen. Contr., 248 A.D.2d 868, 871, 669 N.Y.S.2d 772;  cf. Avendano v. Sazerac, Inc., 248 A.D.2d 340, 669 N.Y.S.2d 620).   Nor was the plaintiff using the ladder as a work platform (see 12 NYCRR 23-1.21[b][4][iv];  Arigo v. Spencer, 39 A.D.3d at 1145, 834 N.Y.S.2d 805;  cf. Johnson v. Flatbush Presbyt. Church, 29 A.D.3d 862, 815 N.Y.S.2d 260;  Montalvo v. J. Petrocelli Constr., Inc., 8 A.D.3d 173, 176, 780 N.Y.S.2d 558;  see generally People v. Finnegan, 85 N.Y.2d 53, 58, 623 N.Y.S.2d 546, 647 N.E.2d 758, cert. denied 516 U.S. 919, 116 S.Ct. 311, 133 L.Ed.2d 214 [“when the statutory ‘language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of [the] words' used.”] ).   Finally, there was no evidence that the ladder was placed on a slippery or unstable surface (see 12 NYCRR 23-1.21[b][4][ii];  cf. Sprague v. Peckham Materials Corp., 240 A.D.2d 392, 393-394, 658 N.Y.S.2d 97).

 However, the plaintiff's causes of action alleging a violation of Labor Law § 200 and common-law negligence should not have been dismissed.   Since the plaintiff alleged that the defendants provided him with an allegedly dangerous or defective ladder, in order to obtain summary judgment the defendants were required to establish that they neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition (see Chowdhury v. Rodriguez, 57 A.D.3d 121, 867 N.Y.S.2d 123).

In this case, the defendants established their prima facie entitlement to summary judgment through the deposition testimony of the defendants' representative that he did not supply the plaintiff with, or direct the plaintiff to use, a defective ladder (see Smith v. 499 Fashion Tower, LLC, 38 A.D.3d 523, 525, 833 N.Y.S.2d 112).   However, the plaintiff disputed this contention, testifying at his deposition that the ladder was owned by the defendants and that the defendants' representative directed him to use it.   Since “fault could be predicated upon [the defendants'] actual or constructive notice of a dangerous condition, such as a defective ladder present on the site,” they were not entitled to summary judgment on the plaintiff's Labor Law § 200 and common-law negligence causes of action (Cruz v. Kowal Indus., 267 A.D.2d 271, 272, 701 N.Y.S.2d 96;  see Wein v. Amato Props., LLC, 30 A.D.3d 506, 507-508, 816 N.Y.S.2d 370;  Ciesielski v. Buffalo Indus. Park, 299 A.D.2d 817, 818-819, 750 N.Y.S.2d 246).   Additionally, the numerous inconsistencies between the deposition testimony of the plaintiff and that of the defendants' representative raised a triable issue of fact as to the credibility of both witnesses (see Klein v. City of New York, 89 N.Y.2d 833, 652 N.Y.S.2d 723, 675 N.E.2d 458;  Delahaye v. Saint Anns School, 40 A.D.3d at 682, 836 N.Y.S.2d 233).