Berrios v. 735 Avenue of the Americas, LLC

Appellate Division of the Supreme Court of New York

Berrios v. 735 Avenue of the Americas, LLC

82 A.D.3d 552, 919 N.Y.2d 16

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 17, 2011

StatusPublished

Cited by7 cases

This text of 82 A.D.3d 552 (Berrios v. 735 Avenue of the Americas, LLC) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Berrios v. 735 Avenue of the Americas, LLC, 82 A.D.3d 552, 919 N.Y.2d 16 (N.Y. Ct. App. 2011).

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Opinion

Defendants argue, for the first time on appeal, that Labor Law § 240 (1) is inapplicable to the facts of this case because there was no collapse of a scaffold. However, even if plaintiff was working on what would become a permanent part of the building, he was exposed to an elevation-related hazard; hé is therefore entitled to the protection of the statute (see e.g. John v Baharestani, 281 AD2d 114, 119 [2001]). The I-beams, ribs, and plywood that, together with concrete, would become the second floor “served, conceptually and functionally, as an elevated platform or scaffold” (Becerra v City of New York, 261 AD2d 188, 189 [1999]). Since “sound scaffolds ... do not simply break apart” (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 286 [2003]), plaintiff met his initial burden on his [553]*553motion by showing that the I-beam flipped, causing him to fall (see Szpakowski v Shelby Realty, LLC, 48 AD3d 268, 269 [2008], lv denied 12 NY3d 708 [2009]; Aragon v 233 W. 21st St., 201 AD2d 353, 354 [1994]). In addition, it is undisputed that there were no safety rails or netting on the day and at the site of plaintiffs accident (see Laquidara v HRH Constr. Corp., 283 AD2d 169 [2001]).

Defendants argue that there is a triable issue of fact as to the availability of safety harnesses (see Gallagher v New York Post, 55 AD3d 488, 490 [2008], revd 14 NY3d 83 [2010]; but see Milewski v Caiola, 236 AD2d 320 [1997]). However, defendant general contractor admitted that there was no location to which a harness could have been tied. Therefore, defendants failed to raise the inference that plaintiffs failure to use a safety harness was the sole proximate cause of his injury (see Miglionico v Bovis Lend Lease, Inc., 47 AD3d 561, 564-565 [2008]). The affirmation of defendants’ attorney, asserting that there were places to which a safety harness could have been tied, is entitled to no evidentiary weight (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). Finally, even if plaintiff could be found recalcitrant for failing to use a harness, defendants’ “failure to provide proper safety [equipment] was a more proximate cause of the accident” (see Milewski, 236 AD2d at 320; see also Blake, 1 NY3d at 290). Concur — Gonzalez, EJ., Tom, Acosta, Richter and Román, JJ.

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Defendants argue, for the first time on appeal, that Labor Law § 240 (1) is inapplicable to the facts of this case because there was no collapse of a scaffold. However, even if plaintiff was working on what would become a permanent part of the building, he was exposed to an elevation-related hazard; hé is therefore entitled to the protection of the statute (see e.g. John v Baharestani, 281 AD2d 114, 119 [2001]). The I-beams, ribs, and plywood that, together with concrete, would become the second floor “served, conceptually and functionally, as an elevated platform or scaffold” (Becerra v City of New York, 261 AD2d 188, 189 [1999]). Since “sound scaffolds ... do not simply break apart” (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 286 [2003]), plaintiff met his initial burden on his [553]*553motion by showing that the I-beam flipped, causing him to fall (see Szpakowski v Shelby Realty, LLC, 48 AD3d 268, 269 [2008], lv denied 12 NY3d 708 [2009]; Aragon v 233 W. 21st St., 201 AD2d 353, 354 [1994]). In addition, it is undisputed that there were no safety rails or netting on the day and at the site of plaintiffs accident (see Laquidara v HRH Constr. Corp., 283 AD2d 169 [2001]).

Defendants argue that there is a triable issue of fact as to the availability of safety harnesses (see Gallagher v New York Post, 55 AD3d 488, 490 [2008], revd 14 NY3d 83 [2010]; but see Milewski v Caiola, 236 AD2d 320 [1997]). However, defendant general contractor admitted that there was no location to which a harness could have been tied. Therefore, defendants failed to raise the inference that plaintiffs failure to use a safety harness was the sole proximate cause of his injury (see Miglionico v Bovis Lend Lease, Inc., 47 AD3d 561, 564-565 [2008]). The affirmation of defendants’ attorney, asserting that there were places to which a safety harness could have been tied, is entitled to no evidentiary weight (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). Finally, even if plaintiff could be found recalcitrant for failing to use a harness, defendants’ “failure to provide proper safety [equipment] was a more proximate cause of the accident” (see Milewski, 236 AD2d at 320; see also Blake, 1 NY3d at 290). Concur — Gonzalez, EJ., Tom, Acosta, Richter and Román, JJ.

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82 A.D.3d 552, 919 N.Y.2d 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berrios-v-735-avenue-of-the-americas-llc-nyappdiv-2011.

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