Opinion
13007 Index No. 161328/15 Case No. 2020-00604
02-02-2021
Carlos ORDONEZ et al., Plaintiffs–Appellants–Respondents, v. ONE CITY BLOCK, LLC, et al., Defendants–Respondents, Waldorf Holding Corporation et al., Defendants–Respondents–Appellants W5 Group LLC doing business as Waldorf Demolition, Third–Party Plaintiff–Respondent–Appellant, v. Calvin Maintenance, Third–Party Defendant–Respondent.
Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York (Christopher J. Donadio of counsel), for appellants-respondents. Lewis, Brisbois, Bisgaard & Smith, LLP, New York (Meredith Drucker Nolen of counsel), for respondents-appellants. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for defendants-respondents.
Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York (Christopher J. Donadio of counsel), for appellants-respondents.
Lewis, Brisbois, Bisgaard & Smith, LLP, New York (Meredith Drucker Nolen of counsel), for respondents-appellants.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for defendants-respondents.
Renwick, J.P., Webber, Gonza´lez, Scarpulla, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered January 13, 2020, which, to the extent appealed from as limited by the briefs, denied plaintiffs' motion for summary judgment as to liability under Labor Law § 240(1) against defendants One City Block, LLC, Taconic Management Company, and W5 Group, LLC d/b/a Waldorf Demolition, unanimously reversed, on the law, without costs, and the motion granted.
Defendants Taconic and W5 are subject to vicarious liability under Labor Law § 240(1) as statutory agents of defendant One City Block, the owner of the construction site, since it is undisputed that they had the authority to supervise and control the work that brought about plaintiff Carlos Ordonez's injury ( Walls v. Turner Constr. Co., 4 N.Y.3d 861, 863–864, 798 N.Y.S.2d 351, 831 N.E.2d 408 [2005] ; Merino v. Continental Towers Condominium, 159 A.D.3d 471, 72 N.Y.S.3d 59 [1st Dept. 2018] ).
Plaintiffs established prima facie that defendants violated Labor Law § 240(1) and that the violation proximately caused plaintiff's injuries, as the uncontroverted evidence shows that the scaffold supplied to plaintiff for the demolition work he was performing lacked guardrails and that no other protective devices were provided to protect him from falling (see Martinez–Gonzalez v. 56 West 75th Street, LLC, 172 A.D.3d 616, 617, 101 N.Y.S.3d 39 [1st Dept. 2019] ; Sanchez v. Bet Eli Co. Del. LLC, 177 A.D.3d 478, 110 N.Y.S.3d 540 [1st Dept. 2019] ; Deschaine v. Tricon Constr., LLC, 187 A.D.3d 599, 131 N.Y.S.3d 121 [1st Dept. 2020] ).
In opposition, defendants failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident. Given the scaffold's inadequacy to protect him from falling, plaintiff's alleged failure to lock the wheels of the scaffold could not be the sole proximate cause of his accident (see Vail v. 1333 Broadway Assoc., L.L.C., 105 A.D.3d 636, 637, 963 N.Y.S.2d 647 [1st Dept. 2013] ). It would be at most comparative negligence, which is not a defense to a Labor Law § 240(1) claim (see Celaj v. Cornell, 144 A.D.3d 590, 42 N.Y.S.3d 25 [1st Dept. 2016] ). Defendants' argument, raised for the first time on appeal, that plaintiff was the sole proximate cause because he was not wearing a safety harness is also unavailing (see Berrios v. 735 Ave. of the Ams., LLC, 82 A.D.3d 552, 553, 919 N.Y.S.2d 16 [1st Dept. 2011] [scaffold's inadequacy was "a more proximate cause of the accident"]), as is their suggestion that plaintiff may have fainted and/or stepped backwards off the scaffold (see Lajqi v. New York City Tr. Auth., 23 A.D.3d 159, 805 N.Y.S.2d 5 [1st Dept. 2005] ).
Nor are material issues of fact presented by any dispute as to exactly how plaintiff fell from the unguarded scaffold or whether the scaffold was six feet or eight feet in height (see Vergara v. SS 133 W. 21, LLC, 21 A.D.3d 279, 800 N.Y.S.2d 134 [1st Dept. 2005] ).