Opinion
643 Index No. 452625/15 Case No. 2022–05774
09-28-2023
Noah LIU et al., Plaintiffs–Appellants, v. WHITESTAR CONSULTING & CONTRACTING, INC., Defendant–Respondent, Safon LLC, et al., Defendants. Whitestar Consulting & Contracting, Inc., Third–Party Plaintiff–Respondent, v. JT Construction & Management Inc., Third–Party Defendant. [And a Second Third-Party Action]
William Schwitzer & Associates, P.C., New York (Christopher W. Drake of counsel), for appellants. Cascone & Kluepfel, LLP, Farmingdale (Kyle R. Silverstein and Howard B. Altman of counsel), for respondent.
William Schwitzer & Associates, P.C., New York (Christopher W. Drake of counsel), for appellants.
Cascone & Kluepfel, LLP, Farmingdale (Kyle R. Silverstein and Howard B. Altman of counsel), for respondent.
Webber, J.P., Friedman, Gonza´lez, Rodriguez, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered September 15, 2022, which, to the extent appealed from, granted the motion of defendants Safon LLC, Safon LLC doing business as The Moinian Group, Josephson LLC doing business as The Moinian Group (collectively, Moinian), Newmark & Co. Real Estate Inc. doing business as Newmark Grubb Knight Frank (collectively, Newmark) dismissing plaintiffs’ claims as against them under Labor Law § 240(1), Labor Law § 200, and common-law negligence; granted defendant Whitestar Consulting & Contracting, Inc.’s motion to dismiss plaintiffs’ claim as against it under Labor Law § 240(1) ; and denied so much of plaintiffs’ cross-motion seeking summary judgment on their Labor Law §§ 240(1) and 200 and common-law negligence claims against defendants, unanimously modified, on the law, to deny Moinian's, Newmark's and Whitestar's motions to dismiss plaintiffs’ Labor Law § 240(1) claim and grant plaintiffs’ cross-motion for summary judgment as to liability on that claim as against Moinian, Newmark, and Whitestar, and otherwise affirmed, without costs.
Injured plaintiff Noah Liu was working at defendants’ construction site when he fell 20 to 25 feet down an unguarded temporary plywood ramp that had been constructed over one of the building's staircases so that workers could move materials.
Plaintiffs established prima facie that they were entitled to summary judgment on their Labor Law § 240(1) claim by submitting evidence that the ramp was a device being used for the construction work, spanned a significant height differential, and did not have any safety devices to prevent workers from inadvertently falling off it (see Hoyos v. NY–1095 Avenue of the Americans, LLC, 156 A.D.3d 491, 493, 67 N.Y.S.3d 597 [1st Dept. 2017] ; Serpe v. Eyris Prods., 243 A.D.2d 375, 377, 663 N.Y.S.2d 542 [1st Dept. 1997] ). These facts are sufficient to conclude that Labor Law § 240(1) applies to the injured plaintiff's accident (see e.g. Valente v. Lend Lease [US] Constr. LMB, Inc., 29 N.Y.3d 1104, 1105, 60 N.Y.S.3d 107, 82 N.E.3d 448 [2017] ; Royland v. McGovern & Co., LLC, 203 A.D.3d 677, 679, 167 N.Y.S.3d 1 [1st Dept. 2022] ). In opposition, defendants proffered no evidence sufficient to raise a triable issue of fact.
That the ramp was not intended to be used as a substitute for a ladder or scaffold, but rather was used to transport materials, is of no moment. Whether an accident involving a ramp is encompassed by Labor Law § 240(1) turns on a number of factors, the primary one being whether the ramp covered a significant elevation differential (compare Latteri v. Port of Auth. of New York & New Jersey, 205 A.D.3d 546, 546, 166 N.Y.S.3d 529 [1st Dept. 2022] [internal sloped ramp the plaintiff used to reach the mechanical parts of the escalator failed to provide proper protection where there were no rails or guards] with Jackson v. Hunter Roberts Constr. Grp., LLC, 161 A.D.3d 666, 666–667, 78 N.Y.S.3d 310 [1st Dept. 2018] ["The height differential of 6 to 10 inches mediated by the [makeshift wooden] ramp did not constitute a physically significant elevation differential covered by the statute"]). Here, as noted, the height differential from the top of the ramp to the ground was 20 to 25 feet.
In light of our determination on the Labor Law § 240(1) claim, defendants’ arguments regarding the claim for negligence and the claims under Labor Law § 200 are academic (see Viruet v. Purvis Holdings LLC, 198 A.D.3d 587, 588–589, 156 N.Y.S.3d 25 [1st Dept. 2021] ; Cronin v. New York City Tr. Auth., 143 A.D.3d 419, 420, 38 N.Y.S.3d 544 [1st Dept. 2016] ).