On February 23, 2005, plaintiff Frank Imperio was employed as a journeyman electrician by Petrocelli Electric Co., when his crew was dispatched to tend to a fallen lamppost opposite 5216 Fifth Avenue, Brooklyn. Petrocelli held a contract with the City of New York for the maintenance and repair of street lights. The crew detached the fallen lamppost from its base, disassembled it into its three main parts, and hoisted and loaded two of the parts into a truck. When the third part was hoisted for loading, it disengaged from the hoist, and fell onto Plaintiff's left hand, severing his [*2]thumb.

Plaintiff commenced this action against the City, alleging causes of action under Labor Law §§ 200, 240 and 241. With this motion, Plaintiff seeks summary judgment, on liability only, under Labor Law § 240, the Scaffold Law. Although Plaintiff testified at a hearing pursuant to General Municipal Law § 50-h, there have been no depositions and little other discovery in this action. Plaintiff has provided a Verified Bill of Particulars and Response to General Demands, but a Preliminary Conference, originally scheduled for September 12, 2006 and twice adjourned at the City's request, has yet to be held.

Labor Law § 240 (1) provides:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, 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."

The statute "protects workers from elevation-related hazards when they are injured while involved in [the] enumerated work activities, including the demolition or alteration of a building or structure." (Panek v County of Albany, 99 NY2d 452, 455 [2003].) The statute "applies to both falling worker' and falling object' cases." (Narducci v Manhasset Bay Associates, 96 NY2d 259, 267 [2001].) Although the statute imposes "strict" or "absolute" liability of a type (see Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 286-89 [2003]), "an accident alone does not establish a Labor Law § 240 (1) violation or causation" (id., at 289.)

"[L]iability is contingent on a statutory violation and proximate cause." (Id., 287.) "In order to establish prima facie entitlement to judgment as a matter of law on a cause of action pursuant to Labor Law § 240 (1), a plaintiff must provide evidence that the statute was violated and that the violation was the proximate cause of his or her injuries." (Wosczyna v BJW Associates, 31 AD3d 754, 755 [2d Dept 2006].)

The facts of this case present a threshold inquiry as to the applicability of Labor Law § 240 (1); that is, whether the lamppost that Plaintiff and his crew were disassembling constitutes a "structure" within the meaning of the statute.

In Manente v Ropost, Inc. (136 AD2d 681 [2d Dept 1988]), plaintiff, an electrician engaged to repair malfunctioning light fixtures in a parking lot, was injured when a "light pole . . . dislodged from its concrete base and fell" (see id., at 682.) The Second Department rejected a claim under Labor Law § 240 (1) because, among other reasons, the "malfunctioning lamppost . . . was not part of a building or structure for purposes of the statute and, indeed, was not even physically connected to one." (See id.) [*3]

Shortly after the Second Department's decision in Manente, the Court of Appeals held in Lewis-Moors v Contel of New York, Inc. (78 NY2d 942 [1991]) that "a telephone pole with attached hardware, cable and support systems constitutes a structure within the meaning of" Labor Law § 240 (1) (id.) The Court applied a broad definition of "structure" as including "any production or piece of work artificially built up or composed of parts joined together in some definite manner." (See id. [quoting Caddy v Interborogh Rapid Transit Co., 195 NY 415, 420 (1909)].) The Second Department soon relied on Lewis-Moors in holding that a "utility pole . . . is a structure' within the meaning of the statute." (See Tauriello v New York Telephone Co., 199 AD2d 377, 378-79 [2d Dept 1993].)

Notwithstanding Lewis-Moors, and without citing it, a federal district court followed Manente (see Giambalvo v National Railroad Passenger Corp, 150 F Supp 166, 168-70 [EDNY 1994]), and the First Department cited Manente with apparent approval (see Malsch v City of New York, 232 AD2d 1, 4 [1st Dept 1997].) Both courts seemed to find significant that lampposts are not attached by wiring to a building or structure. (See Giambalvo v National Railroad Passenger Corp., 850 F Supp at 169; Malsch v City of New York, 232 AD2d at 4.) The significance of physical attachment, however, is undermined by the Court of Appeals's holding in Smith v Shell Oil Co. (85 NY2d 1000 [1995]) that "[l]ike a telephone pole, [a] free-standing Shell sign is . . . a structure" (see id., at 1001-02.)

The Second Department has not expressly revisited Manente. Relying on Smith v Shell Oil Co, it has expressly found a billboard to qualify or a "structure" for purposes of Labor Law § 240 (1) (see Munoz v DJZ Realty, LLC, 15 AD3d 363, 365 [2d Dept], rev'd on other grounds 5 NY3d 747, 748 [2005]); and it has expressly found a crane to be a "structure" (see Curr-En Lin v Holy Family Monuments, 18 AD3d 800, 801 [2d Dept 2005].)

Most significantly, in Fitzpatrick v State of New York (25 AD3d 755 [2d Dept 2006]), the Second Department held that the "replacement of [a] light fixture on [a] lighting pole . . . was activity protected under the statute" (id, at 757.) No mention was made of Manente. The court relied on a Fourth Department decision to the same effect (see Cook v Presbyterian Homes of Western New York, Inc., 234 AD2d 906, 907 [4th Dept 1996].) Interestingly, in its decision the Fourth Department distinguished Manente on an alternative holding, without even noting the conflict on the "structure" issue.

The Court concludes that Manente has been effectively overruled, and should not be applied to preclude Plaintiff's § 240 claim. Recognizing that "[a] trial court is required to apply the most recent controlling decisions of the Appellate Division in which it is located" (see Robert Plan Corporation v Onebeacon Insurance, 10 Misc 3d 1053 [A], 2005 NY Slip Op 51940 [U], * 3 [Sup Ct Nassau County ]), the Court considers Fitzpatrick ( 25 AD3d 755) to be the most recent controlling decision. The Second Department's holding that replacement of the light fixture on a lighting pole is the type of activity protected by § 240 (see id., at 757) would be meaningless if the lighting pole were not a "structure" within the statute. In the context of the Court of Appeals and [*4]Second Department decisions subsequent to Manente, overruling of Manente, albeit silently, seems inevitable.

A conclusion that Plaintiff was engaged in activity protected by the statute when he was injured does not, however, establish that he is prima facie entitled to judgment as a matter of law. "Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1)." (Narducci v Manhasset Bay Associates, 96 NY2d at 267.) "Rather liability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein." (Id.) Here, the City does not contend that the hoisting of the parts of the lamppost to a height from which they could be loaded in the truck is not a type of hazard contemplated by the statute. (See Portillo v Roby Anne Development, LLC, 32 AD3d 421, 421-22 [2d Dept 2006]; compare Zirkel v Frontier Communications of America, 29 AD3d 1188, 1188-89 [3d Dept 2006].)

The real issue here is whether Plaintiff has provided "evidence that the statute was violated and that the violation was the proximate cause of his . . . injuries." (See Wosczyna v BJW Associates, 31 AD3d at 755.) On this motion at least, Plaintiff alleges three different theories of statutory violation. He alleges that he "was not provided with any safety equipment such as harnesses, tie lines, nets, tie ropes, or any other type of safety device which would prevent the accident." (See Attorney Affirmation in Support of Motion, ¶ 16.) But nowhere in Plaintiff's hearing testimony or any other evidentiary submission does Plaintiff identify any "safety equipment" or "safety device" with which he should have been provided. Likewise, he alleges that the City "failed to provide adequate personal protection equipment, and failed to provide an adequate hoist" (see id., ¶ 17), but nowhere identifies any missing "personal protection equipment," or specify any inadequacy in the equipment that was provided or the hoist.

Plaintiff's essential contention is that he was "injured by material falling from a height that was improperly hoisted and inadequately secured." (See id.) In the absence, therefore, of evidence that the accident was "caused by the absence of (or defect in) any safety device," Plaintiff contends that the accident was caused by the way the safety devices that were provided were used. (See Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d at 290.) Here again, however, there is no testimony or other direct evidence to support the contention.

Plaintiff testified at the 50-h hearing that he could not provide an explanation for the lamppost component to have fallen from the hoist, and no explanation is offered elsewhere in the papers. In short, the only reason to suspect that the component was "improperly hoisted and inadequately secured" (see Attorney Affirmation in Support of Motion, ¶ 17) is that the accident happened. In "falling worker" cases "involving ladders or scaffolds that collapse or malfunction for no apparent reason," the courts have "aid[ed] plaintiffs with a presumption that the ladder or scaffolding device was not good enough to afford proper protection." (See Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d at 289 n8.) This Court is not aware of any similar "presumption" in "falling object" cases. [*5]

Even if, however, such a presumption were generally appropriate, it would not be appropriate in this case. Plaintiff testified at the hearing that he could not remember whether he, or one of the two other members of his crew, rigged the lamppost component to the hoist. Not only, therefore, is there no evidence that the hoist or other equipment "was not good enough to afford possible protection" (see id.), there is no evidence to negate the possibility that Plaintiff himself "improperly hoisted and inadequately secured" the load. And Plaintiff was at the controls.

"[A] defendant is not liable under Labor Law § 240 (1) where there is no evidence of violation and the proof reveals that the plaintiff's own negligence was the sole proximate cause of the accident." (See id., at 290.) "[I]f the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation." (Id; see also Robinson v East Medical Center, LP, 6 NY3d 550, 554 [2006].) For these reasons, and given the record on this motion, Plaintiff is incorrect when he asserts that "[t]he fact of which worker rigged the pole is irrelevant to Plaintiff's Labor Law § 240 (1) claim and offers no basis for delay of summary judgment." (See Reply Affirmation in Further Support of Plaintiff's Motion for Partial Summary Judgment, ¶ 25.)

As previously noted, there has been very little discovery in this action. (See Hirsch v Greenridge Associates, LLC, 26 AD3d 411, 412 [2d Dept 2006].) The City's two adjournments of the Preliminary Conference gives Plaintiff no exemption from the movant's burden on a motion for summary judgment, particularly since the instant motion was made within days after the first scheduled date for the conference, and since the affidavit evidence of the two other workers in Plaintiff's crew is at least as available to Plaintiff as to the City.

Plaintiff's motion for summary judgment is granted only in that Plaintiff has shown that he was engaged in an activity covered by Labor Law § 240 (1) when he was injured; the motion is otherwise denied, with leave to renew upon completion of appropriate discovery.

February 14, 2007____________________

Jack M. Battaglia

Justice, Supreme Court