Opinion
December 28, 1995
Appeal from the Supreme Court, Bronx County (Bertram Katz, J.).
Absolute liability is imposed upon owners and contractors pursuant to Labor Law § 240 (1) upon proof of a violation thereof and that such violation was the proximate cause of the injuries sustained ( Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513). However, as almost no pretrial discovery has been conducted herein, the court properly denied summary judgment against the owner defendants pursuant to CPLR 3212 (f). In these circumstances, discovery may yield information allowing defendants-respondents to raise issues of facts as to whether, inter alia, a statutory violation was the proximate cause of the accident ( see, Avner v 93rd St. Assn., 147 A.D.2d 414).
Concur — Kupferman, Asch and Mazzarelli, JJ.
This action arises out of the performance of electrical work by third-party defendant Cotroneo Marino United Electric Company for the owner of the premises, defendant St. John's Cemetery. At the time of the accident, plaintiff was employed by the electrical contractor as an electrical apprentice. Her action against defendant is based on violation of Labor Law § 240 (1).
Plaintiff's affidavit in support of her motion for summary judgment against defendant states, "As I was just placing the final strap to secure the electrical lines in the top corner of the ceiling, the ladder and platform upon which I was working started to sway and gave out from under me. * * * Several employees of the defendants were present at the time of my fall and witnessed the accident."
In opposition to the motion, defendant submitted the affidavit of defendant's director of operations, Joseph D'Alto, which confirms that third-party defendant "UNITED ELECTRIC was requested to provide certain electrical services in the loading dock area of the Resurrection Mausoleum. It is my recollection that the work that was needed to be performed was that of supplying electrical power to a conveyer belt which had recently been placed within the loading dock area * * * To my knowledge, this work merely required the electricians to tap into an electrical power source contained within the ceiling of the loading bay area and then run wiring through piping attached to the walls of the loading dock area to a switchbox which operated the conveyer belt." The statement goes on to assert that, when the accident occurred, "plaintiff was in the process of placing ceiling tiles back into the ceiling which had been removed days before when the electrical connections were being made. * * * It is my further understanding that it was the plaintiff and/or her co-workers who placed and/or constructed the scaffolding being used by plaintiff at the time of her accident."
To recover damages as a member of the special class for whose protection Labor Law §§ 200, 240 and 241 were adopted, a plaintiff is required to establish only two things: (1) that he or she was permitted or suffered to perform work on a structure and, (2) that he or she was hired by the owner, the general contractor or an agent of the owner or general contractor ( Mordkofsky v V.C.V. Dev. Corp., 76 N.Y.2d 573, 576-577, citing Whelen v Warwick Val. Civic Social Club, 47 N.Y.2d 970, 971). Nothing in the statement of defendant's director of operations raises an issue of fact with respect to plaintiff's fulfillment of these criteria. His affidavit concedes that plaintiff was working at ceiling height and using scaffolding at the time she fell.
Defendant has offered no evidence from any witness to contradict plaintiff's statement regarding the circumstances of the accident. Nowhere in his affidavit in opposition to the motion does Mr. D'Alto deny plaintiff's assertion that her fall was witnessed by employees of defendant cemetery. Only the opposing affidavit submitted by defendant's attorney asserts that no employees of the cemetery were present at the time of the accident, and it is well settled that the affidavit of counsel is of no probative value in opposing a motion for summary judgment ( Hasbrouck v City of Gloversville, 102 A.D.2d 905, affd 63 N.Y.2d 916; Farragut Gardens No. 5 v Milrot, 23 A.D.2d 889) when unaccompanied by supporting documentary evidence ( Zuckerman v City of New York, 49 N.Y.2d 557, 563). By contrast, despite defendant's attempt to deprecate its value, the statement of a party witness constitutes competent evidence ( Tungsupong v Bronx-Lebanon Hosp. Ctr., 213 A.D.2d 236, 237, citing Harris v City of New York, 147 A.D.2d 186, 189).
It is of no moment that the scaffolding may have been erected by plaintiff and other employees of the electrical contractor. Labor Law § 240 (1) imposes absolute liability on the property owner for any injury which results from the use of an unsafe scaffolding device. Because the liability imposed is vicarious, neither the lack of an employer-employee relationship nor the absence of the owner's supervision, direction and control over the work is a material consideration ( Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513; Haimes v New York Tel. Co., 46 N.Y.2d 132). This Court has held that, where a worker's injuries result from the collapse of a scaffold supplied and erected by his employer, the owner who hired the employer to install a water tank on the roof of the premises is answerable in damages ( Hauff v CLXXXII Via Magna Corp., 118 A.D.2d 485; see also, Harmon v Sager, 106 A.D.2d 704 [ladder supplied and maintained by injured worker]; Larson v Herald, 96 A.D.2d 1137 [independent contractor fell from own ladder]). As we observed in Hauff (supra, at 486), "although [the scaffold] may have collapsed because of faulty construction which plaintiff took part in, contributory negligence is not a defense to a violation of section 240 ( Crawford v Leimzider, 100 A.D.2d 568)". In sum, Labor Law § 240 (1) is a vicarious liability statute that imposes a duty upon property owners to provide a safe workplace, which may not be escaped by delegation to an independent contractor ( Harmon v Sager, supra; Russin v Picciano Son, 78 A.D.2d 467, affd 54 N.Y.2d 311).
I cannot accept, as defendant cemetery suggests, that work performed by an employee of an electrical contractor is not covered by Labor Law § 240 (1). This Court has held that the replacement of a fire alarm system constitutes "'altering' or 'repairing' of a building or structure * * * within the purview of section 240" ( Tate v Clancy-Cullen Stor. Co., 171 A.D.2d 292, 295). We have also held that the replacement of cable television wire "attached to, and running through, the structure" falls within the protection afforded by the statute ( Rodriguez v New York City Hous. Auth., 194 A.D.2d 460). As we noted in that case, the Court of Appeals has "stated that Labor Law § 240 is to be construed as liberally as possible to achieve the remedial purpose of the statute * * * There is no requirement that the work actually be performed on the building itself" ( supra, at 462, citing Lombardi v Stout, 80 N.Y.2d 290, 296 [removal of tree from building site]; Lewis-Moors v Contel of N.Y., 78 N.Y.2d 942, 943 [telephone pole constitutes "structure"]; Izrailev v Ficarra Furniture, 70 N.Y.2d 813 [repair of sign]).
This matter is also procedurally indistinguishable from Rodriguez v New York City Hous. Auth. ( supra). As we noted there (supra, at 462), "'[t]he failure of any party to adduce a statement from plaintiff's co-workers is no reason for denying plaintiff summary judgment, absent a showing, other than mere speculation, that a bona fide issue exists as to plaintiff's credibility'" (quoting Urrea v Sedgwick Ave. Assocs., 191 A.D.2d 319, 320). Neither the parties' disagreement regarding the applicability of Labor Law § 240, the asserted lack of other witnesses to the accident nor the absence of discovery regarding the nature of the work performed by the injured employee is sufficient to raise a triable issue of fact and so preclude summary judgment.
Accordingly, the order of the Supreme Court, Bronx County (Bertram Katz, J.), entered May 18, 1994, which denied plaintiff's motion for summary judgment on the issue of liability pursuant to Labor Law § 240, should be reversed and the motion granted.