Treu v. Cappelletti

71 A.D.3d 994, 897 N.Y.S.2d 199
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 23, 2010
StatusPublished
Cited by30 cases

This text of 71 A.D.3d 994 (Treu v. Cappelletti) 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
Treu v. Cappelletti, 71 A.D.3d 994, 897 N.Y.S.2d 199 (N.Y. Ct. App. 2010).

Opinion

In an action to recover damages for personal injuries, (1) the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated [995]*995September 3, 2008, as granted those branches of the motion of the defendant Richard R. Cappelletti, Jr., individually and doing business as Cappelletti Remodeling and Renovations, which were for summary judgment dismissing the causes of action to recover damages for violations of Labor Law § 240 (1) and § 241 (6) insofar as asserted against him, and denied those branches of his cross motion which were for summary judgment on the issue of liability on those causes of action, (2) the defendant Richard R. Cappelletti, Jr., individually and doing business as Cappelletti Remodeling and Renovations, appeals, as limited by his notice of appeal and brief, from so much of an order of the same court dated December 15, 2008, as, upon reargument, vacated the determination in the order dated September 3, 2008, granting those branches of his motion which were for summary judgment dismissing the causes of action to recover damages for violations of Labor Law § 240 (1) and § 241 (6) insofar as asserted against him, and thereupon denied those branches of his motion, and (3) the plaintiff appeals, as limited by his brief, from so much of an order of the same court entered March 30, 2009, as, upon reargument, adhered to the determination in the order dated September 3, 2008, denying those branches of his cross motion which were for summary judgment on the issue of liability on the causes of action to recover damages for violations of Labor Law § 240 (1) and § 241 (6), vacated the determination in the order dated December 15, 2008, upon reargument, denying those branches of the motion of the defendant Richard R. Cappelletti, Jr., individually and doing business as Cappelletti Remodeling and Renovations, which were for summary judgment dismissing those causes of action insofar as asserted against that defendant, and thereupon granted those branches of the motion of that defendant.

Ordered that the appeal from so much of the order dated September 3, 2008, as granted those branches of the motion of the defendant Richard R. Cappelletti, individually and doing business as Cappelletti Remodeling and Renovations, which were for summary judgment dismissing the causes of action to recover damages for violations of Labor Law § 240 (1) and § 241 (6) insofar as asserted against him is dismissed, without costs or disbursements, as that portion of the order was superseded by the order dated December “15, 2008, made upon reargument; and it is further,

Ordered that the appeal from so much of the order dated September 3, 2008, as denied those branches of the plaintiffs cross motion which were for summary judgment on the issue of liability on the causes of action to recover damages for viola[996]*996tions of Labor Law § 240 (1) and § 241 (6) is dismissed, as that portion of the order was superseded by the order entered March 30, 2009, made upon reargument; and it is further,

Ordered that the appeal from the order dated December 15, 2008, is dismissed, without costs or disbursements, as that order was superseded by the order entered March 30, 2009, made upon reargument; and it is further,

Ordered that the order entered March 30, 2009, is modified, on the law, (1) by deleting the provision thereof, upon reargument, vacating the determination in the order dated December 15, 2008, denying those branches of the motion of the defendant Richard R. Cappelletti, Jr., individually and doing business as Cappelletti Remodeling and Renovations, which were for summary judgment dismissing the causes of action to recover damages for violations of Labor Law § 240 (1) and § 241 (6) insofar as asserted against him and thereupon granting those branches of the motion, and substituting therefor a provision, upon reargument, adhering to the determination in the order dated December 15, 2008, denying those branches of the motion, and (2) by deleting the provision thereof, upon reargument, adhering to the determination in the order dated September 3, 2008, denying that branch of the plaintiffs cross motion which was for summary judgment on the issue of liability on the cause of action to recover damages for a violation of Labor Law § 240 (1), and substituting therefor a provision, upon reargument, vacating the determination in the order dated September 3, 2008, denying that branch of the cross motion and thereupon granting that branch of the cross motion; as so modified, the order entered March 30, 2009, is affirmed insofar as appealed from, without costs or disbursements.

As the general contractor of the construction site where a single-family residence was being built, the defendant Richard R. Cappelletti, Jr., individually and doing business as Cappelletti Remodeling and Renovations (hereinafter Cappelletti) hired the third-party defendant Pat Treu Construction, Inc. (hereinafter PTCI), to perform certain roofing work. Pursuant to an oral agreement assented to by the plaintiff, Patrick G. Treu, in his capacity as the sole owner of PTCI, PTCI was obligated to provide all materials and equipment necessary to complete the work.

On the day of the accident that is the subject of this action, an employee of PTCI erected a scaffold constructed of two lean-to ladders, two ladder brackets attached to the rungs of each ladder, and a wooden plank laid horizontally across the brackets. When leaned against a wall, the scaffolding loosely [997]*997resembled an upper-case letter “H.” The wooden plank was not secured to the brackets, and the plank itself extended approximately four feet to the left beyond the left ladder. While standing on the plank, the plaintiff stepped onto the four-foot long section that projected out past the left ladder, causing the plank to tip, and fell approximately eight to nine feet to the ground, allegedly sustaining injuries.

The plaintiff commenced the instant action against Cappelletti, among others, alleging, inter alia, violations of Labor Law § 240 (1) and § 241 (6). Cappelletti moved for summary judgment dismissing the complaint insofar as asserted against him, arguing, among other things, that the plaintiffs conduct was the sole proximate cause of his injuries. The plaintiff cross-moved, inter alia, for summary judgment on the issue of liability on the Labor Law § 240 (1) and § 241 (6) causes of action. Upon reargument, the Supreme Court granted those branches of Cappelletti’s motion which were for summary judgment dismissing the Labor Law § 240 (1) and § 241 (6) causes of action, and adhered to a prior order denying that branch of the plaintiffs cross motion which was for summary judgment on the issue of liability on those causes of action. We modify.

“Labor Law § 240 (1) imposes a nondelegable duty upon owners and contractors to provide or cause to be furnished certain safety devices for workers at an elevated work site, and the absence of appropriate safety devices constitutes a violation of the statute as a matter of law” (Andino v BFC Partners, 303 AD2d 338, 339 [2003]). Generally, to succeed on a cause of action alleging a violation of Labor Law § 240 (1), a plaintiff must establish a violation of the statute and that such violation was a proximate cause of his or her resulting injuries (see Labor Law § 240 [1]; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]; Plass v Solotoff, 5 AD3d 365, 366 [2004]).

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Bluebook (online)
71 A.D.3d 994, 897 N.Y.S.2d 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/treu-v-cappelletti-nyappdiv-2010.