[*1]
Wilk v 252 Seventh Ave., LLC
2004 NY Slip Op 51765(U)
Decided on October 22, 2004
Supreme Court, New York County
Acosta, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 22, 2004
Supreme Court, New York County


JAN WILK and LYDIA WILK, PLAINTIFFS,

against

252 SEVENTH AVENUE, LLC, SAFEWAY ENVIRONMENTAL CORPORATION, ROCKROSE CONSTRUCTION and HENRY ELGHANAYAN, DEFENDANTS.




602367/99



Ilasz & Associates

Livius Ilasz, Esq.

61 Broadway 8th Floor

New York, NY 10006

Attorneys for Plaintiffs

Mound, Cotton, Wollan & Greengrass

Michael Rubin, Esq.

One Battery Park Plaza

New York, NY 10004

Attorneys for Defendant Third-Party Plaintiff

Safeway Environmental Corp.

Marshall, Conway & Wright, P.C.

Norman J. Golub, Esq.

116 John Street

New York, New York 10038

Attorneys for Defendants

252 Seventh and Rockrose Construction (252 Seventh-GC)

White & McSpedon, P.C.

Melanie A. Slaughter, Esq.

875 Avenue of the Americas, Suite 800

New York, New York 10001

Attorneys for Third-Party Defendant

Big Apple Wrecking and Construction

Rolando T. Acosta, J.

Plaintiff's motion for summary judgment on liability is granted with respect to his Labor Law § 240(1) claim only.[FN1]

New York Labor Law § 240(1) affords protection to construction site workers who are exposed to elevation hazards. See generally, Blake v. Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 287-290 (2003)(liability under § [*2]240(1) is contingent on a statutory violation and proximate cause). Specifically, § 240(1) provides that:

All contractors, owners and their agents . . . in the erection, demolition, repairing, altering . . . of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoist, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.


(emphasis added). The statute places the ultimate responsibility for work-site safety practices upon the the owner and general contractor, and imposes strict liability for their failure to furnish, erect and insure the operation of safety devices necessary to give protection to the worker against the hazards of his work. Bland v. Manocherian, 66 NY2d 452 (1985); Zimmer v. Chemung County Performing Arts, 65 NY2d 513 (1985). Liability is imposed regardless of the degree of control the contractor and the owner may have over the work performed, Haimes v. New York Telephone, 46 NY2d 132, 136-37 (1978), and irrespective of the injured party's own contributory or comparative negligence or assumption of risk. Brown v. Two Exchange Plaza Partners, 76 NY2d 172 (1990). Where the devices as placed and constructed are inadequate to the task, liability is mandated as a matter of law, provided that the injured party establishes that the statutory violation "was a contributing cause of his fall." Blake v. Neighborhood Housing Services of New York City, Inc., supra, 1 NY3d at 287, citing Duda v. Rouse Contr. Corp, 32 NY2d 405, 410 (1973).

Plaintiff's job on the date of the accident was to remove windows by sawing them out. The facts establish that plaintiff fell off the scaffold (equipped with locking wheels) when his saw jammed and jerked him and the scaffold rolled. Wilkes testified at an EBT that the scaffold was placed on top of debris, three to four feet away from the window, and was not tied to anything. In the past, the scaffold was placed against the wall. Although plaintiff testified that the wheels were locked before he ascended the scaffold, he also stated that the scaffold rolled when the saw jammed. There was also testimony that the wheels were "hard to lock all the way," that plaintiff notified his foreman about this problem, and that his foreman told him to go home if he did not like it (Jan Wilk's EBT Testimony, September 21, 2000, p. 42). [*3]

Contrary to defendants [FN2] claims, plaintiff is entitled to summary judgment as a matter of law under Labor Law § 240(1). The evidence clearly shows that the scaffold, as placed and constructed, was inadequate to protect plaintiff from the specific danger which gave rise to the accident. Garcia v. 1122 East 180th Street Corp., 250 AD2d 550, 551 (1st Dept. 1998)("whether or not the wheel locks on the scaffold were functional, the absolute liability of §2400(1) applies. The verified fact that the scaffold fell over, and thus did not protect plaintiff from falling . . . establishes that the owner failed to take necessary steps to comply with the nondelegable obligation under § 240 (1) to furnish necessary equipment 'so constructed, placed and operated as to give proper protection' to the employee.") see also. Montalvo v. J. Petrocelli Construction, Inc., 8 AD3d 173 (1st Dept. 2004)(plaintiff not required to show that ladder on which 240(1) to furnish necessary equipment he was standing was defective; "it is sufficient for purposes of liability under section 240(1) that adequate safety devices to prevent the ladder from slipping or to protect plaintiff from falling were absent."); Orellano v. 29 East 37th Street Realty Corp., 292 AD2d 289, 290-91 (1st Dept. 2002). Moreover, there is no indication in the record that plaintiff's sole actions were the proximate cause of the accident. Blake v. Neighnorhood Housing Services of NYC, Inc., 1 NY3d 280, 290 (2003).

Plaintiffs' Labor Law 241(6) claim, however, was dismissed by the court because plaintiffs failed to plead the specific code violation. See this Court's Decision dated October 21, 2004, under Seq. 7.

This Court in its discretion has ruled on this motion notwithstanding that plaintiff failed to move within 60 days of the filing of the Note of Issue, inasmuch as the motion was filed within the statutory period of 120 days. See Part 61 Rules. Plaintiff's failure to follow this Part's rules will prove costly in the future.

This constitutes the decision and judgment of this Court

Dated: October 22, 2004 ___________________________

Hon. Rolando T. Acosta, J.S.C. [*4]

Ilasz & Associates

Livius Ilasz, Esq.

61 Broadway 8th Floor

New York, NY 10006

Attorneys for Plaintiffs

Mound, Cotton, Wollan & Greengrass

Michael Rubin, Esq.

One Battery Park Plaza

New York, NY 10004

Attorneys for Defendant Third-Party Plaintiff

Safeway Environmental Corp.

Marshall, Conway & Wright, P.C.

Norman J. Golub, Esq.

116 John Street

New York, New York 10038

Attorneys for Defendants

252 Seventh and Rockrose Construction (252 Seventh-GC)

White & McSpedon, P.C.

Melanie A. Slaughter, Esq.

875 Avenue of the Americas, Suite 800

New York, New York 10001

Attorneys for Third-Party Defendant

Big Apple Wrecking and Construction

Footnotes


Footnote 1:1. This decision was edited for publication.

Footnote 2:2. This Court rejects Safeway's claim that it is not a statutory agent under Labor Law § 240(1) inasmuch as there are issues of fact as to whether it retained supervisory authority over Big Apple Wrecking and Construction Corp. Indeed, it placed an employee on the premises for that purpose. Russin v. Picciano & Son, 54 NY2d 311 (1981).