Vitolo v. City of New York

Appellate Division of the Supreme Court of New York

Vitolo v. City of New York

128 A.D.3d 614, 11 N.Y.S.3d 12

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

DecidedMay 28, 2015

Docket15251 305451/11

StatusPublished

Cited by2 cases

This text of 128 A.D.3d 614 (Vitolo v. City of New York) 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

Vitolo v. City of New York, 128 A.D.3d 614, 11 N.Y.S.3d 12 (N.Y. Ct. App. 2015).

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Opinion

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered September 23, 2014, which, insofar as appealed from, denied defendants’ motion for summary judgment dismissing so much of plaintiffs Labor Law § 241 (6) cause of action as is predicated on Industrial Code (12 NYCRR) § 23-5.1 (h), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

12 NYCRR 23-5.1 (h) provides that “[e]very scaffold shall be erected and removed under the supervision of a designated person.” “Designated person” is defined as “[a] person selected and directed by an employer or his authorized agent to perform a specific task or duty” (12 NYCRR 23-1.4 [b] [17]).

Regardless of whether or not plaintiff was the designated person, given his experience and qualifications in building scaffolds, any failure to so designate someone was not a proximate cause of plaintiffs accident (see e.g. Atkinson v State of New York, 49 AD3d 988 [3d Dept 2008]).

Plaintiff was injured when he attempted to drag the platform by himself while standing on the braces of the scaffold, rather than waiting for another worker to return. There is simply no basis to conclude that plaintiffs accident was in any way the result of someone failing to adequately supervise him. Concur— Andrias, J.P., Moskowitz, DeGrasse, Gische and Kapnick, JJ.

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Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered September 23, 2014, which, insofar as appealed from, denied defendants’ motion for summary judgment dismissing so much of plaintiffs Labor Law § 241 (6) cause of action as is predicated on Industrial Code (12 NYCRR) § 23-5.1 (h), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

12 NYCRR 23-5.1 (h) provides that “[e]very scaffold shall be erected and removed under the supervision of a designated person.” “Designated person” is defined as “[a] person selected and directed by an employer or his authorized agent to perform a specific task or duty” (12 NYCRR 23-1.4 [b] [17]).

Regardless of whether or not plaintiff was the designated person, given his experience and qualifications in building scaffolds, any failure to so designate someone was not a proximate cause of plaintiffs accident (see e.g. Atkinson v State of New York, 49 AD3d 988 [3d Dept 2008]).

Plaintiff was injured when he attempted to drag the platform by himself while standing on the braces of the scaffold, rather than waiting for another worker to return. There is simply no basis to conclude that plaintiffs accident was in any way the result of someone failing to adequately supervise him. Concur— Andrias, J.P., Moskowitz, DeGrasse, Gische and Kapnick, JJ.

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Bluebook (online)

128 A.D.3d 614, 11 N.Y.S.3d 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vitolo-v-city-of-new-york-nyappdiv-2015.

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