BENVENUTO v. TAPPAN ZEE CONSTRUCTORS LLC

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Supreme Court, Orange County, New York.

Mario BENVENUTO, Plaintiff, v. TAPPAN ZEE CONSTRUCTORS, LLC, Defendant.

EF011462-2018

Decided: August 19, 2020

For Plaintiff: Michael Kolb, Esq., O'Connor & Partners, PLLC, Newburgh, NY For Defendant: Christopher M. Petrossian, Esq., London Fischer LLP, New York, NY

It is ORDERED that the motions are disposed of as follows:

A. The Accident

Plaintiff Mario Benvenuto was allegedly injured in a fall from a fixed ladder while working on the Tappan Zee Bridge reconstruction project. His affidavit states:

2. On May 21, 2018, as part of a hoisting operation on one of the towers of the Bridge that later came to be known as the Mario M. Cuomo Bridge, I was installing a new pulley while standing on the third or fourth rung of a fixed vertical ladder.

3. The pulley had a 5/8″ bull rope laced through it. The rope was being held by two other crew members. The rope extended down from the tower to the winch on the road deck about 250 feet below.

4. A metal cable, with an eye loop at the end, was suspended down from a catwalk above the pulley. I had to remove a through bolt from the hasp of the pulley, place the eye loop of the cable onto the hasp, and then re-insert the through bolt of the hasp. The pulley would then be suspended from and held in place by the cable attached tot he hasp. While I installed the new pulley, I placed my left arm through a stringer of the ladder to hold me up while I used my left hand to also hold and manipulate the cable. At the same time, I was also using my right hand to hold the pulley. My right hand was free of the ladder. With my left hand I pulled the cable toward my right hand to place the eye loop onto the hasp of the pulley. It appears that, as I was doing this, one of the crew lost his grip on the rope, which caused the pulley to strike me with enough force to spin me around on the ladder and to cause me to fall from the ladder to the tower floor. I wound up on the floor of the tower with the pulley on top of me.

5. At the time that I was struck by the pulley, both of my hands were off the ladder rungs. My feet were on the same rung. Accordingly, while I was working to install the new pulley, I did not have three-point contact with the ladder, only two-point contact.

6. I was not wearing a lanyard or harness for sue while I was on the ladder and I had not been provided with one. The crew that I was a part of generally did not wear harnesses while working on the tower. I was not instructed to wear a lanyard or harness during the time that I was working on the tower or working to install a pulley. I was not instructed on how to elevate myself so that I was high enough off the tower floor to install the new pulley. I was not instructed not to use the fixed ladder. It was conveniently located about a foot away from where the pulley was to be installed.

7. I was not provided with a scaffold or stable work platform on which to stand while installing the new pulley. Had anyone wanted to provide me with a scaffold or stable work platform, the parts of that device could have been hoisted up to the tower and assemble for use on the tower. There would have been room on the tower to accommodate a scaffold or work platform that was positioned so as to permit me to install the pulley where it had to be installed. While that area was often cluttered, it could have been organized so as to permit a proper positioning and use of a scaffold or other work platform. A scaffold or other platform with guiderails would have provided me with a safe work platform on which to stand while my hands were occupied with installing the new pulley.

(Benvenuto Aff. ¶¶ 2-7)

B. Plaintiff's Motion For Summary Judgment On Labor Law § 240(1)

Plaintiff alleges that Defendant, the general contractor on the project, violated Labor Law § 240(1) by failing to provide him with safety devices so constructed, placed and operated as to give proper protection to him while he was installing the new pulley. Plaintiff acknowledges that he was provided with a fixed ladder, and further acknowledges that this ladder was neither defective nor inadequately secured. He contends that Defendant's failure to furnish him with

(1) a scaffold or lift instead of a fixed ladder, or (2) a safety harness, violated Section 240(1) and proximately caused his injury. In support of his motion for summary judgment, Plaintiff proffers the affidavit of William Marletta Ph.D., CSP.

1. Ladder vs. Scaffold

Dr. Marletta's opinion with respect to the inadequacy of the fixed ladder for Plaintiff's work is grounded inter alia on three specific sources: (1) an ANSI standard for fixed ladders; (2) OSHA guidance on ladder safety; and (3) “scaffoldxs.com” commentary on scaffold safety versus ladder safety.

 The American National Standard for Ladders — Fixed Safety Requirements

A14.3-2008 states in pertinent part:

9.2.1 When ascending/descending a ladder, the user shall face the ladder and maintain three point contact at all times. The three point contact consists of two feet and one hand or two hands and 1 foot which is safely supporting users weight when ascending/descending a ladder.

OSHA's “Ladder Safety Guidance” includes the following cited passage:

When should you use a ladder?

When you want to reach a higher work area, think about the best equipment to use. While a ladder or stepladder is commonly used, it may not always be the best option.

Ask yourself these questions before deciding on a ladder:

Will I have to hold heavy items while on the ladder?

Is the elevated area high enough that it would require a a long ladder that can be unstable?

Will I be working from this height for a long time?

Do I have to stand on the ladder sideways in order to do this work?

If your answer is yes to one of the above questions, consider using something other than a ladder. If possible, bring in other equipment like a scissor lift. If you have to use a ladder, use one that has a working platform with handrail barricades on the sides (e.g., a platform stepladder). Whenever you use a ladder or a stepladder, take note of the safety advice in this guide.

“Scaffoldxs.com” on “Ladders vs Scaffolds” includes the following commentary:

4. working height and platform.

OSHA states that “the top or the top step of a stepladder, shall not be used as a step.” Concluding that every rung between this and the base is potentially a work platform. This means that you have a very limited working area, no larger than the dimension of the rung you are standing on.

Supported scaffolds on the other hand, have a clear working platform, assembled with either planks, prefabricated decks or platform modules. The result is a large working area, where you can easily stall tools and materials, have increased freedom of movement and can work safely in any direction.

Safer work at height

We realize that in some situations, using a ladder is the most practical one. However, when it comes to safety, we recommend using a scaffold rather than a ladder or step-ladder. Especially when one or more of the following is the case:

The working height is 6 feet or higher.

Freedom of movement is required.

Tools and materials need to be stored at the needed working height.

When you want to prevent, or reduce, worker fatigue.

When more than one user need to work in the same area.

(See, Marletta Aff. ¶¶ 7-20)

2. Safety Harness

Dr. Marletta acknowledges that OSHA requires fall protection only when the worker is exposed to a fall great than six (6) feet, and that Plaintiff was working less than six feet above the tower floor when he allegedly fell and sustained injury. He nevertheless opines that the fixed ladder did not provide Plaintiff with proper protection in the absence of a safety harness because his work required the use of both hands, thus preventing him from maintaining three-point contact with the ladder and thereby increasing the possibility of a fall. (See, Marletta Aff. ¶¶ 21-25)

C. Defendant's Cross Motion For Summary Judgment and Opposition

Defendant moves for partial summary judgment on the purported ground that liability under Labor Law § 240(1) does not attach in the case of a fall from a fixed ladder.

Defendant opposes Plaintiff's motion for summary judgment, first, on the purported ground that Plaintiff was provided with a safety harness and failed to use it. Defendant proffers the affidavit of Michael DeGiglio, the safety representative of Plaintiff's employer (subcontractor Welbach Electric Corp.) on the Tappan Zee Bridge project, who avers:

6. Plaintiff was also provided, and required to utilize fall protection that he elected not to use. Specifically, Plaintiff was supplied with a body harness, which allows a worker to attach to things such as a ladder, thereby preventing them from falling in the event they lose their footing.

7. This requirement was emphasized at safety meetings on the project which Mr. Benvenuto attended. There was zero tolerance for failing to follow the required safety procedures on the project. If Mr. Benvenuto failed to tie off at the time of his accident, this was a violation of the safety rules and Mr. Benvenuto was aware of these rules.

8. Plaintiff claims that he was knocked off a ladder and landed on the ground. This could not occur if he was properly utilizing his safety harness, as he was required to do.

(See, DeGiglio Aff. ¶¶ 6-8)

Finally, Defendant asserts that Plaintiff's motion was prematurely interposed prior to the filing of a note of issue and certificate of readiness. Defendant had been granted the right to take a further deposition of the Plaintiff and to examine his cell phone, which purported contains many photographs of the worksite which may, Defendant claims, call into question the credibility of Plaintiff's account of the accident. Due to Covid restrictions, this deposition has yet to occur.

Additionally, Defendant wishes to depose Welsbach employee Michael DeGiglio concerning the specifics of the matter set forth in his affidavit.

D. Labor Law § 240(1) and “Proper Protection”

Subdivision 1 of Section 240 of the Labor Law of the State of New York provides in pertinent part that:

All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, 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) imposes a nondelegable duty [and absolute liability] upon owners and general contractors and their agents to provide safety devices necessary to protect workers from risks inherent in elevated work sites' [cit.om.]. To prevail on a cause of action alleging a violation of Labor Law § 240(1), a plaintiff must prove that the defendant violated the statute and that such violation was a proximate cause of his injuries (see Blake v. Neighborhood Hous. Servs. of NY City, 1 NY3d 280․). Von Hegel v. Brixmor Sunshine Square, LLC, 180 AD3d 727, 728 (2d Dept. 2020). See, Yao Zong Wu v. Zhen Jia Yang, 161 AD3d 813, 814 (2d Dept. 2018).

“[A]n accident alone does not establish a Labor Law § 240(1) violation or causation.” Blake v. Neighborhood Housing Services of NYC, supra, 1 NY3d 280, 289 (2003). “The mere fact that a plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided.” Yao Zong Wu v. Zhen Jia Yang, supra, 161 AD3d at 814; Hugo v. Sarantakos, 108 AD3d 744, 745 (2d Dept. 2013). See, Esteves-Rivas v. W2001Z/15CPW Realty, LLC, 104 AD3d 802, 803 (2d Dept. 2013); Melchior v. Singh, 90 AD3d 866, 868 (2d Dept. 2011). “Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his own injuries, there can be no recovery under Labor Law § 240(1) (see Blake v. Neighborhood Hous. Servs. of NY City, 1 NY3d at 290).” Von Hegel v. Brixmor Sunshine Square, LLC, supra, 180 AD3d at 728.

The failure to provide any safety devices to protect against an elevation-related risk constitutes a violation of Labor Law § 240(1). See, Blake v. Neighborhood Housing Services of NYC, supra, 1 NY3d 280, 289 (2003) (citing Zimmer v. Chemung County Performing Arts, 65 NY2d 513, 522 [1985]). Furthermore, absolute liability pursuant to Labor Law § 240(1) will be imposed when the evidence shows that a “ladder was․inadequately secured and that․the failure to secure the ladder, was a substantial factor in causing the plaintiff's injuries.” Von Hegel v. Brixmor Sunshine Square, LLC, supra, 180 AD3d at 729; Baugh v. NYC School Const. Auth., 140 AD3d 1104, 1105 (2d Dept. 2016); Canas v. Harbour at Blue Point Home Owners Association, Inc., 99 AD3d 962, 963-964 (2d Dept. 2012). See also, Melchior v. Singh, supra, 90 AD3d at 868. Indeed, as the Court of Appeals observed in Blake, where a ladder “collapse[s] or malfunction[s] for no apparent reason,” there is “a presumption that the ladder․was not good enough to afford proper protection.” Id., 1 NY3d at 289 n.8 (citing cases).

However, “[w]hether a device provides proper protection is a question of fact, except when the device collapses, moves, falls, or otherwise fails to support the plaintiff and his materials.” Von Hegel v. Brixmor Sunshine Square, LLC, supra, 180 AD3d at 729; Melchior v. Singh, supra, 90 AD3d at 868. See also, Esteves-Rivas v. W2001Z/15CPW Realty, LLC, supra, 104 AD3d at 803-804.

The application of the foregoing principles is graphically illustrated by Nazario v. 222 Broadway, LLC, 135 AD3d 506 (1st Dept.), modified 28 NY3d 1054 (2016). In that case, the plaintiff was jolted by electricity while working on a ladder, and in consequence he and the ladder fell to the ground. Awarding partial summary judgment to the plaintiff under Labor Law § 240(1), the First Department majority ruled:

Blake v. Neighborhood Hous. Servs. ․cautions that a case brought under Labor Law § 240(1) must show both a statutory violation, which includes the failure to provide a sufficient safety device, and that the violation was a contributing factor to the injury (1 NY3d at 289․). The mere fact that a worker falls from a ladder or a scaffolding is not enough, by itself, to establish that the device did not provide sufficient protection (id. ․).

The worker must show that Labor Law § 240(1) was violated and the violation was a proximate cause of the injury (id.). In Blake, the plaintiff injured his ankle when the upper portion of his extension ladder retracted while he was using it; he testified that the ladder was stable and in proper working condition, and that he was not sure he had locked the extension clips in place before he ascended (id., at 283, 284․). Because the jury held that the ladder was adequate to have provided the necessary protection from a fall, the accident happened solely because of the way plaintiff used the ladder (id. at 284․). The sole proximate cause of the accident was his negligence (id. at 290․).

Here, plaintiff was injured when he was jolted by the electrical charge and although he hung onto the ladder, because it was not secured to something stable, it and he fell to the ground (see Vukovich v. 1345 Fee, LLC [61 AD3d 533 (1st Dept. 20090]․). The lack of a secure ladder is a violation of Labor Law § 240(1), and is a proximate cause of the accident.

Our conclusion follows the reasoning in Blake, and is in harmony with our decision in DelRosario v. United Nations Fed. Credit Union, 104 AD3d 515․ (1st Dept. 2013), where we held that the ladder on which the plaintiff was working was inadequate to prevent him from falling when he was struck by a live electrical wire and, as he pulled away from the wire, the ladder “wobbled and moved” and caused him to lose his balance and fall (id. at 515․). In DelRosario, the inadequacy of the ladder was held to be a proximate cause of his injury (id.). We therefore disagree with our concurring colleague that our holding in DelRosario has caused a split among the Appellate Divisions or deviates from the teachings of the Court of Appeals.

Nazario, supra, 135 AD3d at 507-509.

Justice Tom concurred in the majority's result on constraint of prior First Department authority, including Vukovich v. 1345 Fee, LLC and DelRosario v. United Nations Fed. Credit Union, supra. However, he stated that “this Court's precedent cannot be reconciled with that of the Court of Appeals, which has made clear that merely because a worker falls from a safety device does not mean that, under a principle of strict liability, recovery under the statute is available.” Nazario, supra, 135 AD3d at 511. Justice Tom continued:

In Blake․, the Court of Appeals cautioned against “the mistaken belief that a fall from a scaffold or ladder, in and of itself, resulted in an award of damages to the injured party [cit.om.]. This pronouncement is clearly inimical to plaintiff's chief contention that the failure of the ladder to prevent his fall is sufficient to establish defendants' liability. To the contrary, as the majority here recognizes, the Court of Appeals instructs that in the absence of a statutory violation and any demonstration that the violation was a contributing cause the fall, no prima facie violation of Labor Law § 240(1) is made out (Blake, 1 NY3d at 289.)

The majority correctly notes that a worker injured by a fall from an elevated height is not necessarily required to show that the safety device provided was defective, and must instead show that the absence of adequate safety devices or the inadequacy of the devices provided was a proximate cause of his injuries. Yet the majority holds defendants liable under Labor Law § 240(1) absent any proof that the safety device provided was a proximate cause of plaintiff's injuries.

While failure to supply any safety device whatsoever constitutes a violation of the statute, record evidence is required to establish the need for such protective device, a point made plain in Izrailev v. Ficarra Furniture of Long Is., 70 NY2d 813, 185․ (1987), in which the trial record contained “unrebutted proof” that the plaintiff's decedent should have been provided with various items necessary to perform electrical work on a malfunctioning sign. Likewise, in Quackenbush v. Gar-Ben Assoc., 2 AD3d 824, 825․ (2d Dept. 2003), “unrebutted evidence” established that defendants failed to provide the plaintiff with proper protection to prevent a fall after sustaining an electric shock. Here, the record on appeal contains no such unrebutted evidence, prompting plaintiff's resort to the conclusory assertion that the mere fact he fell from a ladder establishes that the safety devices furnished to him were inadequate to provide proper protection, the very proposition rejected in Blake, 1 NY3d at 288-289․, which the majority concedes․

To be clear, prior to this Court's holdings in Vukovich and DelRosario, all four Departments were unanimous in finding that a question of fact exists on the issue of Labor Law § 240(1) when a plaintiff worker falls from an A-frame stepladder as a result of an electrical shock, and where there is no evidence the ladder is defective and no record evidence of the need for another device [cit.om.].

The reason for this unanimity is obvious: It flows from the Court of Appeals holdings in Blake and Izrailev․

Nazarino, supra, 135 AD3d at 511-513 (Tom, J., concurring).

On further appeal, the Court of Appeals disagreed with the First Department majority in Nazario and held that the plaintiff was not entitled to summary judgment under Labor Law § 240(1) because “[q]uestions of fact exist as to whether the ladder failed to provide proper protection, and whether plaintiff should have been provided with additional safety devices.” Nazario v. City of New York, 28 NY3d 1054, 1055 (2016).Cf., Cutaia v. Board of Managers of 160/170 Varick Street Condominium, 172 AD3d 424 (1st Dept. 2019).

E. Plaintiff Failed To Demonstrate Prima Facie That Defendant's Failure To Furnish Him With A Scaffold Or Lift Instead Of A Fixed Ladder Violated Labor Law § 240(1)

Plaintiff acknowledges that (1) he was furnished with a safety device, to wit, a fixed ladder; (2) this ladder was in no wise defective; and (3) inasmuch as the ladder was firmly affixed to the structure it did not move, sway, collapse, fall or otherwise fail to support him.

As a preliminary matter, then, Plaintiff's reliance on Gordon v. Eastern Railway Supply, Inc., 82 NY2d 555 (1993) is misplaced. In Gordon, the Court of Appeals observed:

This accident happened after plaintiff climbed to the fourth or fifth step of the ladder and activated the trigger of the sandblaster. When he did so, the ladder tipped, causing him to fall.

Id., 82 NY2d at 560. In Gordon, unlike here, the ladder moved, and the absence of proper protection and hence liability under Labor Law § 240(1) could properly be predicated on the defendant's failure to properly secure the ladder. That is patently not the case here.

In contrast, where as here the plaintiff has fallen from a permanently fixed, properly functioning ladder that was not defective, the plaintiff may not rely simply on the fact that the ladder did not prevent his fall, but must demonstrate that “the absence of adequate safety devices or the inadequacy of the devices provided was a proximate cause of his injuries.” See, Nazario v. 222 Broadway, LLC, supra, 135 AD3d at 511-513 (Tom, J., concurring). In Walker v. City of New York, 72 AD3d 936 (2d Dept. 2010), the plaintiff failed to do so and his case was dismissed:

The plaintiff descended down a manhole, into the sewer, and placed an inflatable balloon-type device inside the sewer pipe. As he was climbing up a permanently affixed ladder, and attempting to exit the manhole, the balloon exploded, causing him to fall to the sewer floor and sustain injuries

Here, the defendants made a prima facie showing of entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) cause of action. The plaintiff fell from a permanently affixed, properly functioning ladder, which was not defective [cit.om.]. Although the plaintiff contends that a full-body harness would have prevented the injuries, the ladder was an adequate safety device for entering and exiting the sewer, and it satisfied the defendants' duties under Labor Law § 240(1) (see Blake v. Neighborhood Hous. Servs., 1 NY3d at 286-292․).

Walker, supra, 72 AD3d at 937. In another fixed ladder case, the First Department in Kehoe v.61 Broadway Owner LLC, 180 AD3d 618 (1st Dept. 2020) held that a triable issue of fact on the issue of proper protection precluded summary judgment. The Court wrote:

[W]hile an unsecured ladder that moves or shifts constitutes a prima facie violation of Labor Law § 240(1) [cit.om.], the ladder from which plaintiff fell was secured to the structure, and, other than allegedly vibrating, it did not move, shift or sway. Under the circumstances, an issue of fact exists whether the secured, permanently affixed ladder that allegedly vibrated provided proper protection for plaintiff.

Kehoe, supra, 180 AD3d at 619.

Plaintiff herein relies on yet another fixed ladder case, Mayo v. Metropolitan Opera Assoc., Inc., 108 AD3d 422 (1st Dept. 2013), wherein a worker who fell from a fixed ladder was awarded partial summary judgment under Labor Law § 240(1). The Mayo Court wrote:

To access the roof and the steel carriage rail, Creative's employees․had to climb a ladder located on the sixth floor of the Opera House and exit onto the roof through a hatch door in the ceiling. Plaintiff and his witnesses testified that the hatch door was easy to open, but difficult to close, in part because of a broken hinge, and that two hands were required to close it. Indeed, Lincoln Center's chief engineer, who had used the hatch at least 100 times, testified that to close the hatch a worker had to break three-point contact with the ladder and somehow wedge his body up against the concrete side of the hatch so as to safety reach up with both hands to close the door. On or about September 16, 2008, plaintiff fell off the ladder while trying to close the hatch using both hands.

The record demonstrates that the Met and Lincoln Center failed to provide adequate safety devices to protect plaintiff from the risks associated with gaining access to the Opera House roof and the steel carriage rail, and therefore they are liable for plaintiff's injuries under Labor Law § 240(1) (see Felker v. Corning Inc., 90 NY2d 219․[1997]). Not only did plaintiff have to be elevated to the roof of the Opera House from the sixth floor, for which a ladder was provided, but he also had to use both hands to close the hatch door while standing on the ladder. No safety device was provided to protect him against the risk associated with breaking three-point contact with the ladder so as to use both hands to close the hatch door.

Mayo, supra, 108 AD3d at 423-424.

However, Plaintiff's own evidence demonstrates why Mayo is distinguishable from the case at bar. As the sources cited by Plaintiff's expert make clear, a ladder may be used as (1) a means of ascent to a higher work area, and/or (2) a work platform, and it is only in the act of ascending and descending the ladder that the “three-point contact” rule applies. (See, Point B[1] above, and especially ANSI A14.3-2008 § 9.2.1). In Mayo, unlike here, the injured worker was not using the fixed ladder as a work platform, but solely as a means for accessing the Opera House roof. Closing the hatch was incidental to his descent from the roof, and because that required both hands, it caused him to breach the “three-point contact” rule while descending the ladder. The Second Department accordingly found that the defendants “failed to provide adequate safety devices to protect plaintiff from the risks associated with gaining access to the Opera House roof.” Mayo, supra, 108 AD3d at 423. Here, in contrast, Plaintiff was neither ascending nor descending the fixed ladder when his accident occurred, but using the ladder as a work platform — standing stationary on one rung — while he attempted to install the new pulley. Accordingly, the “three-point contact” rule was inapplicable, wherefore the holding in Mayo does not apply.

Plaintiff has not otherwise demonstrated that Defendant's failure to provide him with a scaffold or lift in lieu of the fixed ladder violated Labor Law § 240(1).

The OSHA “Ladder Safety Guidance” on which Plaintiff's expert relies contemplates the use of ladders as work platforms, and suggests that such usage is proper barring an affirmative answer to the following questions:

Will I have to hold heavy items while on the ladder?

Is the elevated area high enough that it would require a

a long ladder that can be unstable?

Will I be working from this height for a long time?

Do I have to stand on the ladder sideways in order to do this work?

So far as the Court can determine from the facts of record, the answer to all of those questions is in the negative, and Plaintiff's expert does not suggest otherwise. Thus, the OSHA “Ladder Safety Guidance” does not contraindicate the use of a fixed ladder for the work Plaintiff was performing.

The “Scaffoldxs.com” commentary “Ladders vs Scaffolds” on which Plaintiff's expert relies also contemplates the use of ladders as work platforms, and suggests that such usage is proper except in the following circumstances:

The working height is 6 feet or higher.

Freedom of movement is required.

Tools and materials need to be stored at the needed working height.

When you want to prevent, or reduce, worker fatigue.

When more than one user need to work in the same area.

Once again, so far as the Court can determine from the facts of record, none of those circumstances were present here, and Plaintiff's expert does not suggest otherwise. Thus, the “Scaffoldxs.com” commentary does not contraindicate the use of a fixed ladder for the work Plaintiff was performing.

Inasmuch as the very authorities on which Plaintiff's expert grounds his opinion do not support his contention that Defendant violated Labor Law § 240(1) by failing to provide Plaintiff with a scaffold or lift instead of the fixed ladder, the opinion is without probative value. Plaintiff has therefore failed to obviate triable issues of fact whether the fixed ladder afforded Plaintiff proper protection for the work he was called on to perform. See, Von Hegel v. Brixmor Sunshine Square, LLC, supra; Melchior v. Singh, supra; Esteves-Rivas v. W2001Z/15CPW Realty, LLC, supra; Walker v. City of New York, supra; Kehoe v. 61 Broadway Owner LLC, supra.

F. Plaintiff Failed To Demonstrate Prima Facie That He Was Denied Proper Protection Absent A Safety Harness, And Plaintiff's Motion On This Score Must In Any Event Be Denied As Premature

Plaintiff's expert acknowledges that OSHA requires fall protection, such as a safety harness, only if the plaintiff is working at a height of at least six (6) feet above the ground.

While OSHA regulations are not determinative of the issue of “proper protection” under Labor Law § 240(1), the question here whether the fixed ladder provided proper protection or whether additional safety devices were required to comply with Section 240(1) is a matter for the jury to determine. See, Zeitner v. Herbmax Sharon Associates, 194 AD2d 414 (1st Dept. 1993) (“While plaintiff's expert opines that․the lack of a safety harness on the ladder failed to provide proper protection for the plaintiff, that is an issue for the jury to determine”); Gange v. Tilles Investment Co., 2201 AD2d 556, 558 (2d Dept. 1995) (“the plaintiff is not entitled to summary judgment under Labor Law § 240(1) as there are questions of fact whether․the ladder, which was not shown to be defective in any way, failed to provide proper protection, and whether the plaintiff should have been provided with additional safety devices”); Miller v. Long Island Lighting Co., 166 AD2d 564 (2d Dept. 1990).

Assuming arguendo that Plaintiff established that in the absence of a safety harness proper protection was lacking, there remain unresolved issues of fact as to whether Plaintiff was supplied with such a harness and failed to use it. To be sure, the affidavit submitted by Defendant in support of its recalcitrant worker defense (see, Gallagher v. New York Post, 14 NY3d 83 [2010]; Cahill v. Triborough Bridge & Tunnel Authority, 4 NY3d 35 [2004]) is conclusory and lacking in detail. However, Plaintiff's motion was interposed prior to the close of discovery herein, and the witness Michael DeGiglio, who is not in Defendant's control, has yet to be deposed.

Indeed, although two other individuals were working with Plaintiff when the accident occurred, for reasons unknown to the Court Plaintiff is the only witness with knowledge of the surrounding circumstances whose testimony has been presented on the pending motions. Also in the offing but never completed before Plaintiff's motion was interposed was his further deposition concerning photographs of the worksite on his cell phone, which may impact the credibility of his account of the accident.

Since the outstanding discovery may have a significant bearing on factual issues critical to Plaintiff's Section 240 claim and Defendant's recalcitrant worker defense, the Court finds that Plaintiff's motion is premature, and that a definitive resolution must await the completion of discovery herein.

G. Defendant's Cross Motion For Summary Judgment

Defendant's assertion that Labor Law § 240 is not implicated at all by a worker's fall from a fixed ladder is patently without merit, and the Defendant has not demonstrated as a matter of law either that Labor Law § 240(1) was not violated, or that any violation did not proximately cause Plaintiff's injury.

It is therefore

ORDERED, that Plaintiff's motion for partial summary judgment with respect to Defendant's liability under Labor Law § 240(1) is denied with leave to refile after the close of discovery, and it is further

ORDERED, that Defendant's cross motion for partial summary judgment dismissing Plaintiff's Labor Law § 240(1) claim is denied.

The foregoing constitutes the decision and order of the Court.

Catherine M. Bartlett, J.

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