Kosavick v. Tishman Construction Corp.

[288] Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered October 17, 2007, which denied plaintiffs’ motion for partial summary judgment on the issue of liability under Labor Law § 240 (1), reversed, on the law, without costs, the motion granted and the matter remanded for further proceedings. It is uncontradicted that plaintiff, while performing demolition work, was injured when both he and the unsecured A-frame ladder he was standing on were suddenly struck by a section of pipe he had cut, causing him to fall. Plaintiff had not been provided with adequate safety devices that could be used at the location in question nor was anyone holding the ladder. Plaintiffs claims encompass both a falling object and a fall from an elevation due to inadequate safety devices. It is uncontested that plaintiff was struck by an unsecured pipe and that he then either fell from the ladder that he was standing on or the ladder itself failed. Addressing the latter scenario first, once a plaintiff makes a prima facie showing that the ladder he was using collapsed, there is a presumption that the ladder was an inadequate safety device (Panek v County of Albany, 99 NY2d 452, 458 [2003]). Similarly, his testimony that he was struck by the pipe constitutes a prima facie showing that the appropriate safety device was not used. The burden then shifts to defendant to establish that “there was no statutory violation and that plaintiffs own acts or omissions were the sole cause of the accident” (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 n 8 [2003]). We observe that this is not merely a negligence action, that the Labor Law and decisional authority impose a greater burden on the defendants, and that public policy protecting workers requires that the statutes in question be construed liberally to afford the appropriate protections to the worker. Thus, to defeat summary judgment in this case based on violations of the Labor Law, defendant would necessarily have to establish that plaintiff “had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured” (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004]). The record fails to establish that there is an issue of material fact on several of the Cahill sole proximate cause factors. [289] Primarily, there is simply no evidence of record that plaintiff chose not to use an available safety device. Indeed, plaintiffs explanation for his failure to use a chain to secure the pipe prior to cutting through it for removal was that there was no place to attach the chain. At no point does Michael Martin, the president of plaintiffs employer, specifically state that plaintiff was told to use a chain to secure the pipe and that he had “no good reason not to do so” (id.). Furthermore, defendants point to no evidence of record that, like the plaintiffs in Cahill and Blake, plaintiff explicitly refused to use the available safety devices (see Quattrocchi v F.J. Sciame Constr. Corp., 44 AD3d 377, 381-382 [2007]). We reject the proposition posited by defendants, and accepted by the dissent, that generic statements of the availability of safety devices are sufficient to create an issue of fact that plaintiff was the sole proximate cause of his injury. Plaintiff specifically testified that although he had used the devices to secure pipes while he was cutting them, at this particular location “[t]here was no place to put a chain.” The testimony of Martin, offered by defendant, simply does not controvert this. Martin testified that he did not know if plaintiff was instructed to use any specific safety device, or if safety devices were present at the location of the accident on the day in question. Furthermore, although Martin maintained that plaintiff should have “put up an anchor on the ceiling and tied off,” he did not “know the exact spot” where the accident occurred. Martin offered only the conclusion that “[a]nyplace in a room is feasible to tie off’ (emphasis added). Of course, Martin was referring to plaintiff anchoring his own safety line, not a chain fall securing the errant pipe. Thus, contrary to the view of the dissent, Martin could not say with any certainty that at the location of the accident, plaintiff either could have “tied off’ or that the pipe could have been secured. Furthermore, Martin was specifically asked if he instructed plaintiff to tie off at the location of the accident or if he knew anyone who directed plaintiff to tie off. He repeatedly responded either “no” or “I don’t know.” This testimony alone removes the case from the ranks of Cahill and Blake. Finally, it is beyond cavil that the failure to properly secure a ladder so as to hold it steady and erect during its use constitutes a violation of Labor Law § 240 (1) (see Montalvo v J. Petrocelli Constr., Inc., 8 AD3d 173, 174 [2004]; Dasilva v A.J. Contr. Co., 262 AD2d 214 [1999]). Concur—Lippman, P.J., Catterson and Moskowitz, JJ.