Mata v. Park Here Garage Corp.

71 A.D.3d 423, 896 N.Y.S.2d 57

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 2010
• Status: Published

Opinions

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered June 23, 2008, which, to the extent appealed from as limited by the briefs, denied plaintiffs motion for summary judgment on the issue of liability under Labor Law § 240 (1) and granted defendants’ cross motions for summary judgment dismissing the Labor Law § 241 (6) claim, modified, on the law, plaintiffs motion granted, the matter remanded for assessment of damages, and otherwise affirmed, without costs.

Plaintiff, an independent contractor, was engaged to repair an inoperative rolling garage gate permanently affixed to a structure used as a commercial parking facility (see Izrailev v Ficarra Furniture of Long Is., 70 NY2d 813, 815 [1987]). The work required the removal of a 300-pound tube-and-spring assembly from brackets securing it to the top of the garage entranceway, more than 10 feet above the ground. Plaintiff improvised a pulley system consisting of a length of chain draped over an upper rung of his own extension ladder and attached to the assembly. As plaintiff and his coworker were lowering the assembly, one end struck the ground, causing the ladder to move. Plaintiff, who was standing on the ladder, lost his balance and fell to the sidewalk below, fracturing his wrist.

Plaintiffs injury is “the direct consequence of a failure to provide statutorily required protection against a risk plainly arising from a workplace elevation differential,” in which “the harm flows directly from the application of the force of gravity to the object” (Runner v New York Stock Exch., Inc., 13 NY3d 599, 604, 605 [2009]; cf. Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). Here, it is undisputed that plaintiffs work entailed the removal of a 300-pound assemblage comprising part of a metal gate and secured above the entranceway of a building or structure. For this type of work, Labor Law § 240 (1) requires that a worker be provided with appropriate safety devices, as enumerated in that section, such as scaffolding or a hoist, hanger or pulley. The only safety device defendants made available was an A-frame ladder, and their failure to provide adequate safety devices under section 240 (1) renders them liable for plaintiffs injuries as a matter of law (Velasco v Green-Wood Cemetery, 8 AD3d 88 [2004]). Defendants do not explain how an A-frame ladder would have provided adequate protection. That plaintiffs improvisational use of his own extension ladder might be viewed as inappropriate is not material since a worker’s contributory negligence does not bar recovery under section 240 (1) (see Bland v Manocherian, 66 NY2d 452, 459-460 [1985]; Velasco, 8 AD3d at 89; Hernandez v 151 Sullivan Tenant Corp., 307 AD2d 207, 208 [2003]).

Labor Law § 241 (6), however, is inapposite because plaintiff was not performing his work in the context of construction, demolition or excavation (see Caban v Maria Estela Houses I Assoc., L.P., 63 AD3d 639, 640 [2009]). Concur—Tom, J.P., Renwick, Freedman and Román, JJ.