Opinion
2017–12314 Index No. 21451/13
03-30-2022
Hemraj SINGH, appellant, v. 180 VARICK, LLC, et al., respondents.
Sacco & Fillas, LLP, Astoria, NY (James R. Baez of counsel), for appellant. Michael C. Tromello, Melville, NY (Kevin J. Bryant of counsel), for respondents.
Sacco & Fillas, LLP, Astoria, NY (James R. Baez of counsel), for appellant.
Michael C. Tromello, Melville, NY (Kevin J. Bryant of counsel), for respondents.
ANGELA G. IANNACCI, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, WILLIAM G. FORD, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Darrell L. Gavrin, J.), entered October 5, 2017. The order, insofar as appealed from, granted those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 240(1) and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon alleged violations of 12 NYCRR 23–1.7(d) and 23–1.21(b).
ORDERED that the order is affirmed insofar as appealed from, with costs.
In June 2012, the plaintiff, Hemraj Singh, an independent contractor, was injured while performing HVAC-related work for the defendant Ostra Capital Management, LLC, a tenant in a building managed by the defendant 180 Varick, LLC. At his deposition, the plaintiff testified that he was injured while descending a six-foot A-frame ladder. He testified that, when he reached the second rung from the bottom of the ladder, he lost his balance and fell back onto his left side. The plaintiff was unable to recall whether the ladder moved in any way before he fell.
The plaintiff commenced this action, alleging violations of Labor Law §§ 200, 240(1), and 241(6). After the completion of discovery, the defendants moved, inter alia, for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 240(1) and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon alleged violations of 12 NYCRR 23–1.7(d) and 23–1.21(b). By order entered October 5, 2017, the Supreme Court granted those branches of the defendants’ motion. The plaintiff appeals.
Labor Law § 200 "is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work" ( Ortega v. Puccia, 57 A.D.3d 54, 60, 866 N.Y.S.2d 323 ; see Cantalupo v. Arco Plumbing & Heating, Inc., 194 A.D.3d 686, 689, 148 N.Y.S.3d 224 ). Liability under Labor Law § 200 "generally falls into two broad categories: instances involving the manner in which the work is performed, and instances in which workers are injured as a result of dangerous or defective premises conditions at a work site" ( Abelleira v. City of New York, 120 A.D.3d 1163, 1164, 992 N.Y.S.2d 324 ; see Cantalupo v. Arco Plumbing & Heating, Inc., 194 A.D.3d at 689, 148 N.Y.S.3d 224 ). A defendant is not liable under Labor Law § 200 where the plaintiff's conduct is the sole proximate cause of the accident (see DiSanto v. Spahiu, 169 A.D.3d 861, 862, 94 N.Y.S.3d 167 ; Dos Anjos v. Palagonia, 165 A.D.3d 626, 627, 84 N.Y.S.3d 237 ).
Here, the defendants demonstrated, prima facie, that they did not have supervisory authority over the plaintiff's work and that the plaintiff's actions were the sole proximate cause of the accident. In opposition, the plaintiff did not raise a triable issue of fact as to whether the defendants had supervisory authority over his work. Furthermore, the plaintiff's sworn affidavit failed to raise a triable issue of fact as to whether his own actions were the sole proximate cause of the accident. Although he stated in his affidavit that the ladder slid underneath him due to dust and debris on the surface of the floor, his affidavit contradicted his earlier deposition testimony that he did not know why he fell and that he fell because he lost his balance, and therefore only raised a feigned issue of fact (see Fonck v. City of New York, 198 A.D.3d 874, 156 N.Y.S.3d 308, citing Doran v. JP Walsh Realty Group, LLC, 189 A.D.3d 1363, 1364–1365, 134 N.Y.S.3d 787 ; Maldonado v. New York City Hous. Auth., 145 A.D.3d 679, 680, 42 N.Y.S.3d 349 ). The plaintiff failed to otherwise raise a triable issue of fact (see DiSanto v. Spahiu, 169 A.D.3d at 863, 94 N.Y.S.3d 167 ; Ortega v. Puccia, 57 A.D.3d at 63, 866 N.Y.S.2d 323 ; Blanco v. Oliveri, 304 A.D.2d 599, 600, 758 N.Y.S.2d 376 ).
" Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites" ( McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 374, 929 N.Y.S.2d 556, 953 N.E.2d 794 ). A defendant is liable under section 240(1) only where a violation of the provision is a proximate cause of the plaintiff's accident (see Lozada v. St. Patrick's R C Church, 174 A.D.3d 879, 880, 106 N.Y.S.3d 325 ; Nunez v. City of New York, 100 A.D.3d 724, 724, 954 N.Y.S.2d 163 ; Treu v. Cappelletti, 71 A.D.3d 994, 997, 897 N.Y.S.2d 199 ). Here, the defendants established, prima facie, that the plaintiff's ladder was not defective, that additional safety devices were not required as a matter of law, and that the plaintiff's actions were the sole proximate cause of the accident (see Pacheco v. Recio, 168 A.D.3d 867, 868, 91 N.Y.S.3d 469 ; Matter of Nadler v. City of New York, 166 A.D.3d 618, 620, 87 N.Y.S.3d 335 ). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the ladder was inadequate, or whether his own actions were the sole proximate cause of the accident.
Finally, " Labor Law § 241(6) imposes a non-delegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" ( Lopez v. New York City Dept. of Envtl. Protection, 123 A.D.3d 982, 983, 999 N.Y.S.2d 848 ; see Cantalupo v. Arco Plumbing & Heating, Inc., 194 A.D.3d at 688, 148 N.Y.S.3d 224 ). "To succeed on a cause of action alleging a violation of Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the accident" ( Doran v. JP Walsh Realty Group, LLC, 189 A.D.3d at 1364, 134 N.Y.S.3d 787 ; see Przyborowski v. A & M Cook, LLC, 120 A.D.3d 651, 654, 992 N.Y.S.2d 56 ).
The defendants demonstrated, prima facie, that the alleged violations of 12 NYCRR 23–1.7(d) and 23–1.21(b) were inapplicable to the facts of the case by submitting the plaintiff's deposition testimony in which he testified that his fall was caused by his own loss of balance. In opposition, the plaintiff failed to raise a triable issue of fact (see Yao Zong Wu v. Zhen Jia Yang, 161 A.D.3d 813, 815, 75 N.Y.S.3d 254 ; Melendez v. 778 Park Ave. Bldg. Corp., 153 A.D.3d 700, 701–702, 59 N.Y.S.3d 762 ).
Accordingly, the Supreme Court properly granted those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 240(1) and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon alleged violations of 12 NYCRR 23–1.7(d) and 23–1.21(b).
IANNACCI, J.P., MILLER, MALTESE and FORD, JJ., concur.