Kuhn v. Camelot Ass'n

Memorandum: Plaintiff commenced this Labor Law and 1705 common-law negligence action seeking damages for injuries he sustained while working on the roof of a building owned by defendant. According to plaintiff, who was employed by nonparty Watkins Builders, Inc. (Watkins Builders) at the time of the accident, he stepped from the roof onto an elevated platform attached to a Gradall forklift (hereafter, forklift), and the forklift tipped over, causing him to fall to the ground. Supreme Court granted plaintiffs motion for partial summary judgment on liability with respect to the Labor Law § 240 (1) claim and denied defendant’s cross motion for summary judgment dismissing the amended complaint. The court subsequently granted defendant’s motion for leave to reargue its opposition to the motion and for leave to reargue its cross motion and, upon reargument, the court adhered to its prior decision. We affirm. We reject at the outset the contention of defendant that plaintiffs motion was premature pursuant to CPLR 3212 (f). Even assuming, arguendo, that “facts essential to justify opposition” to the motion could be gleaned from depositions of employees of Watkins Builders (CPLR 3212 [f]), we conclude that defendant failed to demonstrate that such information was within plaintiff’s “ ‘exclusive knowledge and possession’ ” (Wright v Shapiro, 16 AD3d 1042, 1043 [2005]; cf. Terranova v Emil, 20 NY2d 493, 497 [1967]). Moreover, defendant failed to establish that it could not have deposed the nonparty witnesses during the approximately two-year period between the commencement of the action and plaintiffs motion (see Guarino v Mohawk Containers Co., 59 NY2d 753 [1983]; Avraham v Allied Realty Corp., 8 AD3d 1079 [2004]; Witte v Incorporated Vil. of Port Washington N., 114 AD2d 359 [1985]). With respect to the merits, we conclude that plaintiff met his initial burden on the motion by establishing that he “was not furnished with the requisite safety devices and that the absence of appropriate safety devices was a proximate cause of his injuries” (Williams v City of Niagara Falls, 43 AD3d 1426, 1427 [2007] ; see Felker v Corning Inc., 90 NY2d 219, 224 [1997]; Ganger v Anthony Cimato/ACP Partnership, 53 AD3d 1051, 1052 [2008] ). In opposition to the motion, defendant failed to raise a triable issue of fact whether plaintiffs “own conduct, rather than any violation of Labor Law § 240 (1), was the sole proximate cause of his accident” (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004]). Although defendant contends that plaintiff should have utilized a ladder as a safety device, it presented no evidence that plaintiff had been instructed to use a ladder or that plaintiff knew or should have known to use a ladder “ ‘based on his training, prior practice[ ] 1706 and common sense’ ” (Ganger, 53 AD3d at 1053; see Ewing v Brunner Intl., Inc., 60 AD3d 1323 [2009]). The owner of Watkins Builders summarily asserted in an affidavit that “all employees knew” not to use the forklift to transport personnel, but he did not aver that he or anyone else instructed plaintiff to avoid using the forklift in that manner. Indeed, there is no evidence that plaintiff “received specific instructions to use a [ladder rather than the forklift] while [ascending and descending the roof] and chose to disregard those instructions” (Cahill, 4 NY3d at 39). To the contrary, the deposition testimony of plaintiff and his coworkers established that the forklift was provided to them at the job site and that it had been used to transport workers, as well as materials, during the weeks prior to plaintiffs accident. Further, it is undisputed that plaintiffs foremen observed, facilitated and participated in the use of the forklift for the transport of workers (see generally Rico-Castro v Do & Co N.Y. Catering, Inc., 60 AD3d 749, 750 [2009]; Pichardo v Aurora Contrs., Inc., 29 AD3d 879, 880-881 [2006]). Indeed, one of the foremen, who had previously worked out of the forklift at an elevated height, had placed the forklift adjacent to the roof where plaintiff was working, and that foreman was operating the forklift at the time of the accident. The other foreman was on the roof with plaintiff when plaintiff used the forklift to descend therefrom. Thus, inasmuch as the forklift was furnished by plaintiffs employer and its use as an alternative safety device for transporting personnel was approved by plaintiff’s supervisors, it cannot be said that plaintiffs decision to use the forklift rather than the ladder to descend from the roof is the sole proximate cause of the accident (see generally Cahill, 4 NY3d at 39; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290 [2003]; Evans v Syracuse Model Neighborhood Corp., 53 AD3d 1135, 1137 [2008]). All concur except Smith, J.E, and Garni, J., who dissent in part and vote to modify in accordance with the following memorandum.