Frank v. Meadowlakes Development Corp.

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Stephen R. Frank (plaintiff) was working for third-party defendant Home Insulation and Supply, Inc. (Home) when he fell backwards down a temporary staircase while carrying a large bag of insulation. Plaintiffs commenced this action against various parties, alleging violations of Labor Law §§ 200, 240 (1); § 241 (6) and § 241-a, as well as a claim for

Plaintiffs appeal from an order of Supreme Court (appeal No. 1) insofar as it denied that part of their motion for summary judgment on the Labor Law § 240 (1) claim and granted those parts of the cross motions of defendants Meadowlakes Development Corporation (Meadowlakes) and D.J.H. Enterprises, Inc., doing business as Danni-Marr Builders (DJH), for summary judgment dismissing that claim. The court properly denied plaintiffs’ motion but erred in granting those parts of the cross motions of Meadowlakes and DJH. A temporary staircase that is used for access to and from the upper levels of a house under construction is the “functional equivalent of a ladder” and falls within the designation of “other devices” within the meaning of Labor Law § 240 (1) (Wescott v Shear, 161 AD2d 925 , appeal dismissed 76 NY2d 846 ; see, Williams v City of Albany, 245 AD2d 916 , 917, appeal dismissed 91 NY2d 957 ). There is a question of fact, however, whether the alleged statutory violation was the proximate cause of the accident (see, Weininger v Hagedorn & Co., 91 NY2d 958 , 959, rearg denied 92 NY2d 875 ). The court properly denied the motion of third-party defendant Douglas Kokanovich, doing business as Woodland Construction Co. (Kokanovich), for summary judgment dismissing the third- and fourth-party complaints. There are questions of fact whether Kokanovich or DJH provided the temporary staircase and, if provided by Kokanovich, whether it had a handrail.

Plaintiffs also appeal from the order insofar as it denied that part of their motion for summary judgment on the Labor Law § 241 (6) claim. Meadowlakes and DJH appeal from the order insofar as it denied those parts of their cross motions for summary judgment dismissing the Labor Law § 241 (6) claim. The court erred in denying the cross motions insofar as they alleged a violation of 12 NYCRR 23-1.7 (b). That regulation, although sufficiently specific to support liability under the statute (see, Mazzu v Benderson Dev. Co., 224 AD2d 1009 ), is not applicable to the facts of this case because plaintiff did not fall through a hazardous opening (see, Bennion v Good Year Tire & Rubber Co., 229 AD2d 1003 ; McCole v City of New York, 221 AD2d 605 ). The court properly denied the cross motions with respect to the alleged violations of 12 NYCRR 23-1.15 and 23-2.7 (e). There is a question of fact whether the lack of a railing was a proximate cause of the accident, and thus summary judgment is not appropriate (see, Mazzu v Benderson Dev. Co., supra).