Videan v. NRG Energy, Inc.

Appeal from an order of the Supreme Court, Livingston County (Dennis S. Cohen, A.J.), entered January 28, 2016. The order granted defendants’ motion for summary judgment dismissing plaintiff’s complaint and denied plaintiff’s cross motion for partial summary judgment.

It is hereby ordered that the order so appealed from is unanimously modified on the law by denying the motion in part and reinstating the complaint with respect to the Labor Law § 240 (1) claim, and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries that he sustained when he stepped on the midrail of a scaffold, began to fall, and grabbed onto a pipe to stop his fall. At the time of the incident, he was working for API Construction Services (API), which had been subcontracted to perform insulation work on property allegedly owned by defendants. The scaffold was supplied by another subcontractor, Patton Construction (Patton), and only employees of Patton were authorized to assemble, modify or adjust the scaffolds.

Defendants moved for summary judgment dismissing the complaint in its entirety. Plaintiff opposed the motion only insofar as it sought dismissal of the Labor Law §§ 240 (1) and 241 (6) claims, and cross-moved for partial summary judgment on liability on the section 240 (1) claim. Supreme Court granted defendants’ motion in its entirety and denied plaintiff’s cross motion. We agree with plaintiff that the court erred in granting that part of defendants’ motion with respect to the section 240 (1) claim, and we therefore modify the order accordingly.

Contrary to defendants’ contention, they failed to establish as a matter of law that plaintiff’s actions were the sole proximate cause of the accident, i.e., 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]; see Fazekas v Time Warner Cable, Inc., 132 AD3d 1401 , 1403 [2015]).

Defendants’ submissions establish that, on the day of the ac

Inasmuch as a modification to the scaffold was required and could have taken hours to be performed, we conclude that there are triable issues of fact whether an adequate safety device was “readily available” for plaintiff’s use (Montgomery v Federal Express Corp., 4 NY3d 805 , 806 [2005]; see Miro v Plaza Constr. Corp., 9 NY3d 948 , 949 [2007]; cf. Robinson v East Med. Ctr., LP, 6 NY3d 550 , 554-555 [2006]). Moreover, based on plaintiff’s testimony describing the third supervisor’s instructions, we conclude that there are triable issues of fact whether plaintiff chose “for no good reason” not to wait for the scaffold to be modified (Cahill, 4 NY3d at 40 ; see DeRose v Bloomingdale’s Inc., 120 AD3d 41 , 45-47 [2014]). Although the third supervisor denied making such a comment, that denial merely establishes that neither party is entitled to summary judgment on the Labor Law § 240 (1) claim.

With respect to the dismissal of plaintiff’s Labor Law § 241 (6) claim, we note that, in his bills of particulars, plaintiff asserted numerous violations of the Industrial Code (12 NYCRR 23-1.1 et seq.) in support of that claim. In opposition to defendants’ motion, however, plaintiff relied on only sections 23-5.1 (e) (1), 23-5.1 (e) (5) and 23-5.1 (f). On this appeal, plaintiff contends that the court erred in dismissing the Labor Law § 241 (6) claim only insofar as it was based on the violation of sections 23-5.1 (e) (1) and (5). We thus conclude that plaintiff has abandoned any reliance on the sections cited in his bills of particulars, except for sections 23-5.1 (e) (1) and (5) “by failing

Contrary to plaintiff’s contention, the court properly dismissed his Labor Law § 241 (6) claim insofar as it was based on the alleged violations of 12 NYCRR 23-5.1 (e) (1) and (5) because defendants established as a matter of law that any alleged violation of those sections was not a proximate cause of plaintiffs accident (see generally Schroeder v Kalenak Painting & Paperhanging, Inc., 27 AD3d 1097 , 1099 [2006], affd 7 NY3d 797 [2006]; Carroll v County of Erie, 48 AD3d 1076 , 1077 [2008]). Those Industrial Code sections concern the size and placement of planks on a scaffold, and plaintiff admitted at his deposition that his accident did not occur because of any problems with the planks on the scaffold. Rather, his accident occurred because the scaffold was not high enough to enable him to reach his work area. We thus conclude that, even if there are triable issues of fact whether planks were missing at the time the accident occurred, which would render those sections applicable to the facts of this case (see Klimowicz v Powell Cove Assoc., LLC, 111 AD3d 605 , 607 [2013]), defendants established as a matter of law that plaintiff’s accident did not result from any violation of those sections. Plaintiff, in opposition to the motion, failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557 , 562 [1980]).

Present — Centra, J.P., Carni, Lindley, Curran and Troutman, JJ.