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holding that the evidence that the ladder, which lacked rubber footing, collapsed or malfunctioned for no apparent reason establishes noncompliance with section 23-1.21 [b]- and
Summary of this case from Cortes v. Madison Square Garden Co.Opinion
2012-01-24
Ganpat SOODIN, Plaintiff–Appellant–Respondent, v. Gregory FRAGAKIS, et al., Defendants–Respondents–Appellants.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant-respondent. Domenick L. D'Angelica, New York, for respondents-appellants.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant-respondent. Domenick L. D'Angelica, New York, for respondents-appellants.
ANDRIAS, J.P., SAXE, SWEENY, ACOSTA, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Louis B. York, J.), entered August 24, 2010, which denied plaintiff's motion for partial summary judgment on the Labor Law §§ 240(1) and 241(6) causes of action, and granted defendants' motion for summary judgment to the extent it sought to dismiss those causes of action, unanimously reversed, on the law, without costs, to grant plaintiff's motion and to deny defendants' motion.
Plaintiff was entitled to partial summary judgment on his Section 240(1) and 241(6) claims. Plaintiff established that he was supplied with an old, weak, and shaky ladder that lacked rubber footings and was placed on a slippery polyurethane-coated floor, and that the ladder toppled over, causing him to fall. The commercial painting and plastering work in which plaintiff was engaged when he fell is covered under Labor Law § 240(1) ( see Demaj v. Pelham Realty, LLC, 82 A.D.3d 531, 532, 918 N.Y.S.2d 459 [2011]; Gonzalez v. 310 W. 38th, L.L.C., 14 A.D.3d 464, 788 N.Y.S.2d 384 [2005] ). The evidence that the ladder collapsed or malfunctioned for no apparent reason raises the presumption that the ladder “was not good enough to afford proper protection” under the statute ( Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 289 n. 8, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ). It also establishes noncompliance with Industrial Code (12 NYCRR) §§ 23–1.21(b)(1), (3)(i)-(ii) and (iv), and (4) (ii).
Defendants failed to raise an issue of fact as to whether plaintiff was their special employee and therefore limited to workers' compensation benefits ( see Workers' Compensation Law § 29[6] ). Defendants contend that plaintiff was their special employee because they were the alter egos of nonparty Pine Management, plaintiff's general employer ( see e.g. Ramnarine v. Memorial Ctr. for Cancer & Allied Diseases, 281 A.D.2d 218, 722 N.Y.S.2d 493) [2001]. However, the record showed that Pine and defendant Delter Realty were separately incorporated and maintained separate records; there is no evidence that their finances were integrated, that they commingled assets, or that the principals failed to treat the entities as separate and distinct ( see Wernig v. Parents & Bros. Two, 195 A.D.2d 944, 600 N.Y.S.2d 852 [1993] [closely associated corporations which shared directors and officers were not alter-egos] ). Indeed, Pine billed Delter for plaintiff's work. Moreover, plaintiff testified that he was never supervised by anyone from Delter, and was at all times supervised by someone from Pine.