Cordeiro v. Shalco Investments

[487] On December 7, 1998, Fabio Cordeiro (plaintiff) began working on a garage renovation project, in which his job was to chip concrete off of exposed and elevated steel beams. On December 8, 1998, plaintiff was injured when he fell from one of the beams, on which he had been positioned, onto the concrete floor below. Plaintiff, in the affidavit he submitted in support of his summary judgment motion, averred that he had been directed by “the senior employee” at the worksite to mount the beam by climbing a ladder, that he had not been provided with “any other means of gaining access to the elevated beam,” and that he had not been provided with any safety devices to prevent or arrest a fall. Plaintiff admitted at his deposition, however, that, on the day before the accident, he had used a “lift machine” to gain access to the beam on which he was working. Plaintiff also maintained that he had been engaged in work at the time of his fall, and had lost his balance when he turned upon hearing someone call his name. In opposition to plaintiff’s summary judgment motion, defendant-appellant Hicksville Paving, Inc. (Hicksville) submitted the affidavit of its employee Eugene “Buddy” Wright, plaintiffs coworker on the day of the accident, who stated that he and plaintiff had been provided with a “motorized scaffold” from which all sections of the beam could be reached. According to Wright, therefore, plaintiff had no reason to mount the beam, and he was never ordered to climb onto the beam. Wright further averred that plaintiff “had been joking around that day [of the accident] and had been dancing and fooling around on the beams.” Wright, who was out of the garage at the time of the accident, stated that plaintiff had told him that “he [plaintiff] was trying to walk from one side of the garage to the other on the beam,” rather than working, when he fell, meaning that plaintiff had been using the beam as a shortcut out of the garage instead of climbing down from it and walking up the exit ramp. Another Hicksville employee, Richard Tonon, submitted an affidavit attesting that the “man lift” Hicksville provided for the job “could be made to go vertically up and down and move to different locations as the job required,” and that “[t]he work platform for the man lift had a guard rail” to prevent falls during use. Tonon also averred that there was no [488] need for plaintiff to attempt to walk over the beam to leave the garage, since “non-elevated walkways” were present. Tonon gave testimony to similar effect at his deposition, which was also submitted in opposition to plaintiffs summary judgment motion. The evidence presented by Hicksville was sufficient to raise an issue of fact as to whether plaintiff is entitled to prevail on his Labor Law § 240 (1) cause of action. Since plaintiff, by his own account, had climbed up a ladder to mount the beam, he could easily have climbed down the same ladder to dismount the beam and then safely walked up the exit ramp out of the garage. Instead, according to plaintiffs alleged admission to Wright, plaintiff was needlessly using the beam as a shortcut out of the garage when he fell. If this is what plaintiff in fact did, the walk on the beam that resulted in his fall was a voluntary detour that did not serve any work-related purpose (cf., Hagins v State of New York, 81 NY2d 921, 922-923 [affirming summary judgment as to statutory liability where claimant fell while walking on unfinished abutment wall, contrary to his employer’s instructions, but while carrying piece of lumber he had been directed to retrieve for the job]). Thus, although the motion court correctly dismissed Hicksville’s recalcitrant worker defense (which disposition Hicksville does not challenge on appeal), defendants may be able to establish at trial that plaintiffs injuries were proximately caused solely by his own actions, not by any failure of defendants to provide adequate safety devices (see, Weininger v Hagedorn & Co., 91 NY2d 958, 960 [directed verdict for plaintiff on issue of liability under Labor Law § 240 (1) was error where “a reasonable jury could have concluded that plaintiffs actions were the sole proximate cause of his injuries”]). As this Court has previously stated, “[i]n order to impose absolute liability on a building owner, the injured party must prove a violation of Labor Law § 240 (1) and that said violation was the proximate cause of the injuries” (Zeitner v Herbmax Sharon Assoc., 194 AD2d 414, 414 [emphasis in original], citing Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361, appeal dismissed 58 NY2d 824). Contrary to the dissent’s view, Hicksville has not raised an issue of plaintiffs possible negligence in the performance of his work (which would not, of course, ameliorate any statutory liability), but an issue of whether the Labor Law § 240 (1) violation had any causal nexus to plaintiffs injuries. Stated otherwise, while defendants were obligated by the statute to protect plaintiff from elevation-related risks while he was on the beam doing his job, or climb [489] ing onto or off of the beam in connection with his work, they had no duty under the statute to protect plaintiff from the additional risks he incurred by walking on the beam when his presence on the beam had no work-related purpose. As to Hicksville, plaintiff should have been denied summary judgment on the additional ground that Hicksville raised an issue of fact as to whether it was plaintiff’s employer on the day of the accident, which, if proven, would bar plaintiff’s causes of action against Hicksville under the Workers’ Compensation Law. Plaintiff, who obtained his employment by showing up at a “shape-up” yard, claims that he was not employed by Hicks-ville, but by another company, Carlo Lizza & Sons Paving, Inc. (Lizza). Although plaintiff submitted a pay stub from Lizza showing 40 hours of work during the period from December 2 through 8, 1998, Hicksville submitted sufficient evidence to defeat summary judgment on this issue. Plaintiff’s coworker, Wright, stated in his affidavit that both he and plaintiff were employees of Hicksville when they were working on this job. In addition, Tonon, Hicksville’s job supervisor, stated in his affidavit that Hicksville had been the contractor for the job on which plaintiff was employed, and had not subcontracted any portion of the work for the job to Lizza. Tonon further averred that, to his knowledge, Lizza had not been doing any work on this job in any way. The affidavits of Wright and Tonon, in combination with plaintiffs deposition testimony that Wright was the only person who gave him instructions for this job and that there was no one other than Wright present at the work site whom plaintiff believed to be a Lizza employee, raised a triable issue at least as to whether plaintiff was a special employee of Hicksville, which would be sufficient to make the bar of the Workers’ Compensation Law applicable (see, Walls v Krasdale Foods, 266 AD2d 5, citing Thompson v Grumman Aerospace Corp., 78 NY2d 553). Thus, plaintiff was not entitled to summary judgment on the issue of whether Hicksville was his employer, without regard to the purported documentary evidence of Hicksville’s status as plaintiffs employer that it submitted, i.e., Hicksville’s 1998 W-2 form for plaintiff and its Workers’ Compensation Board accident report, both of which were created after the accident. We observe that the assertion of plaintiffs counsel that the Workers’ Compensation Board has determined that plaintiff was employed by Lizza is entitled to no weight, as it is not supported by any corroborating documentation. Concur — Tom, J.P., Sullivan and Friedman, JJ.