Opinion
2014-03-4
Karlo MORATO–RODRIGUEZ, Plaintiff–Respondent, v. RIVA CONSTRUCTION GROUP, INC., Defendant, 1412 Broadway, LLC, Defendant–Respondent, Admit One, LLC, Defendant–Appellant.
Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), for appellant. Kagan & Gertel, Brooklyn (Irving Gertel of counsel), for Karlo Morato–Rodriguez, respondent.
Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), for appellant. Kagan & Gertel, Brooklyn (Irving Gertel of counsel), for Karlo Morato–Rodriguez, respondent.
McGaw, Alventosa & Zajac, Jericho (Ross P. Masler and Dawn C. DeSimone of counsel), for 1412 Broadway, LLC, respondent.
FRIEDMAN, J.P., RENWICK, FREEDMAN, FEINMAN, JJ.
Order, Supreme Court, Bronx County (Maryann Brigantti–Hughes, J.) entered August 3, 2012, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment as to liability under Labor Law § 240(1) and denied defendant Admit One LLC's cross motion for summary judgment dismissing the complaint, unanimously modified, on the law, to deny plaintiff's motion, and otherwise affirmed, without costs.
The motion court properly found that Admit One LLC's status as a tenant does not shield it from liability under Labor Law § 240(1) ( see Bush v. Goodyear Tire & Rubber Co., 9 A.D.3d 252, 253, 779 N.Y.S.2d 206 [1st Dept.2004], lv. dismissed3 N.Y.3d 737, 786 N.Y.S.2d 815, 820 N.E.2d 294 [2004] ). Admit One's reliance on Ferluckaj v. Goldman Sachs & Co., 12 N.Y.3d 316, 880 N.Y.S.2d 879, 908 N.E.2d 869 [2009] is misplaced, because unlike the tenant in that case, here the testimony of Admit One's vice president establishes that it selected the contractor for the work and substantially directed and controlled it. Indeed, emails provided by the architect further demonstrate that Admit One was actively engaged in the build-out.
Plaintiff demonstrated his prima facie entitlement to summary judgment on the issue of defendants' § 240(1) liability through his testimony that, at the direction of the defendants' site foreman, he used the only ladder on the floor, an open A–frame ladder “not too far” from the foreman's toolbox, and that while he was standing on it, the ladder became unstable, wobbled and fell, causing him to fall and sustain injury ( see Schultze v. 585 W. 214th St. Owners Corp., 228 A.D.2d 381, 644 N.Y.S.2d 722 [1st Dept.1996] ).
In opposition, defendants raised an issue of material fact. In his affidavit, the site foreman avers that prior to plaintiff's accident, he directed plaintiff not to use “a couple of ladders, broken-up and busted-up” and placed by the garbage bins. He further averred that “at least two A–frame sturdy ladders” were on the floor, and that he told plaintiff to “sweep the floor until a safe ... ladder” was available. According to the foreman, upon arriving at the scene of the accident, he observed that plaintiff had used a ladder that the foreman had specifically instructed him not to use.
These competing versions of what transpired raise factual questions as to whether plaintiff was provided an adequate ladder, and, if so, whether he knew it was available and that he was expected to use it, but nevertheless unreasonably chose not to use it, thereby causing his injury ( see Nacewicz v. Roman Catholic Church of the Holy Cross, 105 A.D.3d 402, 963 N.Y.S.2d 14 [1st Dept.2013] ). Thus, plaintiff is not entitled to partial summary judgment on his Labor Law § 240(1) claim.