Gilbert v. Albany Medical Center

9 A.D.3d 643, 779 N.Y.S.2d 653, 2004 N.Y. App. Div. LEXIS 9450

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 8, 2004
• Status: Published

Opinions

Lahtinen, J.

Appeal from that part of an order of the Supreme Court (Keegan, J.), entered May 12, 2003 in Albany County, which, upon renewal, denied plaintiffs motion for partial summary judgment.

Plaintiff was injured when he fell while working on a ladder during an asbestos removal project that his employer was conducting at a building owned by defendants. He commenced this action alleging liability under Labor Law §§ 200, 240 (1) and § 241 (6). Plaintiff subsequently moved for partial summary judgment on the Labor Law § 240 (1) cause of action. Defendants opposed the motion and cross-moved for partial summary judgment seeking dismissal of the Labor Law §§ 200 and 241 (6) causes of action. In January 2003, Supreme Court granted plaintiffs motion for partial summary judgment on the Labor Law § 240 (1) cause of action, partially granted defendants’ cross motion by dismissing the Labor Law § 241 (6) cause of action and plaintiff withdrew the Labor Law § 200 cause of action. Plaintiff and defendants appealed and, while that appeal was pending, defendants moved to reargue and renew. Supreme Court granted defendants’ motion to renew and, based upon the additional evidence submitted, denied plaintiff’s motion for partial summary judgment finding triable issues as regards the alleged violation of Labor Law § 240 (1). Plaintiff elected not to pursue his appeal from Supreme Court’s January 2003 order which dismissed his Labor Law § 241 (6) cause of action. He has, however, appealed from the order which, upon renewal, denied his motion for partial summary judgment under Labor Law § 240 (1).

Plaintiff does not contest on appeal the aspect of Supreme Court’s order that permitted renewal and, thus, we turn to his argument that, even considering the additional evidence submitted by defendants, he was entitled to partial summary judgment on the Labor Law § 240 (1) claim. Labor Law § 240 (1) is liberally construed to effect its purpose of providing protection to workers (see Melber v 6333 Main St, 91 NY2d 759, 762 [1998]). To recover under the statute, a plaintiff must show a violation of the statute that was a proximate cause of the accident (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]; Duda v Rouse Constr. Corp., 32 NY2d 405, 410 [1973]). The comparative negligence of a plaintiff is not a defense (see Stolt v General Foods Corp., 81 NY2d 918, 920 [1993]; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 521 [1985]). If, however, the sole proximate cause of the accident is a plaintiff s conduct then there is no liability under the statute (see Blake v Neighborhood Hous. Servs. of N.Y. City, supra at 290-291; Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]).

Here, plaintiff was removing asbestos from a pipe located at a height of about nine feet. He was provided a six-foot stepladder to remove asbestos. The entire area, including the floor, was covered with polyethylene that had been sprayed with water creating a slippery surface. Plaintiff testified that, as he was working on the ladder, he felt it slip and then it collapsed. He fell on top of the ladder sustaining injuries. A coworker in the room did not see plaintiff fall, but he heard a noise and then observed both plaintiff and the ladder on the floor immediately after the accident. Plaintiffs supervisor, Michael Horton, was summoned from another part of the building and spoke with plaintiff shortly after the accident. Based upon his conversation with plaintiff and inspection of the accident scene, he concluded that plaintiff had been reaching and extending from the ladder. Horton stated that the ladder was supposed to be placed under a three-foot section of the pipe, asbestos removed, and then the ladder moved to another three-foot section. However, the evidence establishes that the ladder was open and placed on a slippery surface when it collapsed and plaintiff fell. This constitutes a prima facie showing of a Labor Law § 240 (1) violation that was a proximate cause of the accident (see Morin v Machnick Bldrs., 4 AD3d 668, 670 [2004]; Smith v Pergament Enters. of S.I., 271 AD2d 870, 871-872 [2000]; see also Bland v Manocherian, 66 NY2d 452 [1985]; Beesimer v Albany Ave./Route 9 Realty, 216 AD2d 853, 854 [1995]). The fact that plaintiff may have been extending or reaching from the ladder would implicate comparative negligence, which is not a defense to a section 240 (1) action. Accordingly, we conclude that plaintiffs motion for partial summary judgment should have been granted.

Peters, J.E, and Mugglin J., concur.