SANTO v. MDS (2007)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Pines, J.), entered May 8, 2006, as granted those branches of the motion of the defendants Martin Scro, Joni Scro, and MDS Enterprises, Inc., which were for summary judgment dismissing the causes of action based on Labor Law §§ 240(1) and 241(6) insofar as asserted against the defendant MDS Enterprises, Inc.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants Martin Scro, Joni Scro, and MDS Enterprises, Inc., which was for summary judgment dismissing the cause of action based on Labor Law § 240(1) insofar as asserted against the defendant MDS Enterprises, Inc., and substituting therefor a provision denying that branch of the motion;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff allegedly was injured while working as an apprentice electrician when he fell from a scaffold he was using to install lighting fixtures in the 25-foot ceiling of a house under construction.   According to the plaintiff's deposition testimony, the accident occurred when his foot got caught on a bowed plank and he fell over the side of the scaffold.   He also testified that he did not use an extension ladder provided by his employer because it was too flimsy when fully extended and could not be safely used when nobody was available to secure the bottom of the ladder.   The defendant Martin Scro, who was the principal of the defendant general contractor, MDS Enterprises, Inc. (hereinafter MDS), testified that he denied the plaintiff's employer permission to use the scaffold because it was not his but belonged to the masonry subcontractor working on the fireplace.   After discovery, the defendants Martin Scro, Joni Scro, and MDS moved for summary judgment dismissing, inter alia, the Labor Law §§ 240(1) and 241(6) causes of action insofar as asserted against MDS, and the Supreme Court granted the motion.

 The Supreme Court erred in determining that MDS established its entitlement to summary judgment dismissing the Labor Law § 240(1) cause of action.   MDS, as a party moving for summary judgment, bore the prima facie burden of demonstrating by proof in admissible form that the plaintiff's accident was not proximately caused by a violation of Labor Law § 240(1) (see Camlica v. Hansson, 40 A.D.3d 796, 837 N.Y.S.2d 179), or that the plaintiff's own negligent conduct in failing to use an available and adequate safety device was the sole proximate cause of the accident (see Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550, 552, 814 N.Y.S.2d 589, 847 N.E.2d 1162;  Montgomery v. Federal Express Corp., 4 N.Y.3d 805, 795 N.Y.S.2d 490, 828 N.E.2d 592;  Bonilla v. State of New York, 40 A.D.3d 673, 835 N.Y.S.2d 690;  Yedynak v. Citnalta Constr. Corp., 22 A.D.3d 840, 841, 803 N.Y.S.2d 705;  Negron v. City of New York, 22 A.D.3d 546, 803 N.Y.S.2d 664;  see generally Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 291, 771 N.Y.S.2d 484, 803 N.E.2d 757).   The evidence submitted by MDS, including the plaintiff's deposition testimony, failed to establish that either the extension ladder brought by the plaintiff's employer, or the scaffold from which the plaintiff fell, was an adequate safety device (see Bonilla v. State of New York, supra;  Florio v. LLP Realty Corp., 38 A.D.3d 829, 833 N.Y.S.2d 148;  Marin v. Levin Props., LP, 28 A.D.3d 525, 526, 812 N.Y.S.2d 645;  Palacios v. Lake Carmel Fire Dept., Inc., 15 A.D.3d 461, 463, 790 N.Y.S.2d 185;  Alava v. City of New York, 246 A.D.2d 614, 668 N.Y.S.2d 624).   Further, contrary to the contention of MDS, the evidence does not establish a recalcitrant worker defense, which requires proof that a plaintiff disobeyed an “immediate specific instructions to use an actually available safety device [provided by the employer] or to avoid using a particular unsafe device” (Walls v. Turner Constr. Co., 10 A.D.3d 261, 262, 781 N.Y.S.2d 13, affd. 4 N.Y.3d 861, 798 N.Y.S.2d 351, 831 N.E.2d 408;  see Jastrzebski v. North Shore School Dist., 223 A.D.2d 677, 637 N.Y.S.2d 439, affd. 88 N.Y.2d 946, 647 N.Y.S.2d 708, 670 N.E.2d 1339;  Beamon v. Agar Truck Sales, Inc., 24 A.D.3d 481, 483-484, 808 N.Y.S.2d 232;  Palacios v. Lake Carmel Fire Dept., Inc., supra;  Andino v. BFC Partners, 303 A.D.2d 338, 340, 756 N.Y.S.2d 267).   Thus, the Supreme Court erred in granting the branch of the motion which was to dismiss the cause of action based on Labor Law § 240(1).

 On the other hand, after MDS established its entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) cause of action, the plaintiff, who did not allege violation of any applicable Industrial Code rule, failed to raise a triable issue of fact (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82).   The provision of the Industrial Code relied on by the plaintiff, which requires work areas to be kept free of tripping hazards, such as accumulated dirt, debris, or sharp projections (see 12 NYCRR § 23-1.7[e][2] ), does not apply since the allegedly uneven plank of the scaffold platform was part of the floor of the work site itself (see Parker v. Ariel Assoc. Corp., 19 A.D.3d 670, 672, 798 N.Y.S.2d 489;  Kulis v. Xerox Corp., 231 A.D.2d 922, 647 N.Y.S.2d 632).