Kuhn v. Camelot Ass'n

Memorandum: Plaintiff commenced this Labor Law and

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[ ]

All concur except Smith, J.E, and Garni, J., who dissent in part and vote to modify in accordance with the following memorandum.

(dissenting in part). We respectfully dissent in part. In our view, Supreme Court erred in granting plaintiffs motion for partial summary judgment on liability with respect to the Labor Law § 240 (1) claim upon granting defendant’s motion for leave to reargue, inter alia, its opposition to plaintiffs motion. Defendant raised a triable issue of fact whether plaintiffs own conduct was the sole proximate cause of his injuries. The record establishes that, on the date of his accident, plaintiff was employed by nonparty Watkins Builders, Inc. (Watkins Builders) to perform roofing work. Elaintiff ac

The record is devoid of evidence that anyone from Watkins Builders instructed plaintiff with respect to the appropriate means to access or exit the roof. Instead, the record establishes that the use of the forklift to access or exit the roof had been an informal practice devised by Watkins Builders’ employees. Thus, plaintiff was presented with two means of descending from the roof, i.e., the forklift and the ladder, and he was neither encouraged nor discouraged from using either means. The record further establishes that plaintiff had received training from previous employers regarding the use of a ladder but that he had not received any training with respect to a forklift and had never used a forklift as a means of transporting workers before his employment with Watkins Builders. Consequently, we conclude that a triable issue of fact exists whether plaintiff, “ ‘based on his training, prior practice [ ] and common sense, knew or should have known’ ” to use the ladder instead of the forklift to exit the roof (Gimeno v American Signature, Inc., 67 AD3d 1463 , 1464 [2009], lv dismissed 14 NY3d 785 [2010]; cf Montgomery v Federal Express Corp., 4 NY3d 805 [2005]).

The majority relies on Rico-Castro v Do & Co N.Y. Catering, Inc. ( 60 AD3d 749 , 750 [2009]) and Pichardo v Aurora Contrs., Inc. ( 29 AD3d 879 , 880-881 [2006]) in support of its position that plaintiffs own conduct was not the sole proximate cause of his injuries because the foremen observed, facilitated and participated in the use of the forklift to transport workers. Those cases, however, are distinguishable from this case. Although the unsafe devices at issue in Rico-Castro and Pichardo were used by the plaintiffs in those cases at the direction of, or with the tacit approval of, their superiors, there were no other safety devices available for those plaintiffs to perform the required work (see Rico-Castro, 60 AD3d at 750-751 ; Pichardo, 29 AD3d at 880-881 ). In contrast, here, plaintiff unilaterally declined to use another available means of descending from the roof. Thus, “we conclude that defendant ] raised triable issues of fact whether safe alternative means of descending from the roof were available to plaintiff and whether his failure to use those alternative means was the sole proximate cause of his injur[ies]” (Harris v Hueber-Breuer Constr. Co., Inc., 67 AD3d