        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

670
CA 10-02435
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND MARTOCHE, JJ.


JASON THOME, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

BENCHMARK MAIN TRANSIT ASSOCIATES, LLC, CHRISTA
CONSTRUCTION, LLC, DEFENDANTS-APPELLANTS,
ET AL., DEFENDANT.


WEBSTER SZANYI LLP, BUFFALO (KEVIN T. O’BRIEN OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered March 11, 2010 in a personal injury action. The
order, insofar as appealed from, granted those parts of the motion of
plaintiff seeking partial summary judgment on liability with respect
to the Labor Law § 240 (1) claim against defendants Benchmark Main
Transit Associates, LLC and Christa Construction, LLC.

     It is hereby ORDERED that the order insofar as appealed from is
reversed on the law without costs and those parts of plaintiff’s
motion for partial summary judgment on the Labor Law § 240 (1) claim
against defendants Benchmark Main Transit Associates, LLC and Christa
Construction, LLC are denied.

     Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action seeking damages for injuries he sustained when the
scissor lift on which he was standing tipped over. Benchmark Main
Transit Associates, LLC and Christa Construction, LLC (collectively,
defendants) appeal from an order that, inter alia, granted those parts
of plaintiff’s motion for partial summary judgment on liability with
respect to the Labor Law § 240 (1) claim against them. Although
defendants purport to appeal from “each and every portion of the
[o]rder . . . as well as from the whole [o]rder,” we note that
defendants are aggrieved only by those parts of the order granting
plaintiff’s motion with respect to the section 240 (1) claim against
them. Contrary to defendants’ contention, plaintiff met his initial
burden on those parts of the motion. “In order for a plaintiff to
demonstrate entitlement to summary judgment on an alleged violation of
Labor Law § 240 (1), he [or she] must establish that there was a
violation of the statute, which was the proximate cause of the
worker’s injuries . . . However, if adequate safety devices are
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                                                           CA 10-02435

provided and the worker either chooses not to use them or misuses
them, then liability under section 240 (1) does not attach” (Cherry v
Time Warner, Inc., 66 AD3d 233, 236). Here, plaintiff met his initial
burden of establishing a statutory violation by submitting evidence
that he was standing on the raised scissor lift when it tipped over
and that he was in the process of measuring and installing metal studs
at that time (cf. Primavera v Benderson Family 1968 Trust, 294 AD2d
923; see generally Dean v City of Utica, 75 AD3d 1130; Ward v Cedar
Key Assoc., L.P., 13 AD3d 1098). Thus, the scissor lift “failed while
plaintiff was [engaged in] . . . work requiring the statute’s special
protections” (Melber v 6333 Main St., 91 NY2d 759, 763-764).

     We agree, however, with the further contention of defendants that
they raised a triable issue of fact whether plaintiff’s actions were
the sole proximate cause of his injuries. In opposition to the
motion, defendants submitted evidence that plaintiff was aware that
holes had been cut into the concrete floor of the building in which he
was working and that, on the morning of his accident, plaintiff had
been specifically directed not to operate the scissor lift in the area
where the holes had been cut. Further, defendants submitted evidence
that plaintiff drove the raised lift into that area while looking at
the ceiling rather than where the lift was going. Consequently,
“[u]nlike those situations in which a safety device fails for no
apparent reason, thereby raising the presumption that the device did
not provide proper protection within the meaning of Labor Law § 240
(1), here there is a question of fact [concerning] whether the injured
plaintiff’s fall [resulted from] his own misuse of the safety device
and whether such conduct was the sole proximate cause of his injuries”
(Bahrman v Holtsville Fire Dist., 270 AD2d 438, 439).

     SMITH, J.P., CARNI, and SCONIERS, JJ., concur; MARTOCHE, J., concurs
in the following Memorandum: I concur in the result reached by the
majority, but I respectfully disagree with the majority’s analysis.
In my view, plaintiff failed to meet his initial burden on those parts
of his motion seeking partial summary judgment on liability with
respect to the Labor Law § 240 (1) claim against Benchmark Main
Transit Associates, LLC and Christa Construction, LLC (collectively,
defendants).

     The manner in which the accident occurred is not in dispute.
Plaintiff was standing on a scissor lift and, when he repositioned the
scissor lift to perform his work, one of its wheels entered a hole in
the floor and the scissor lift tipped over, causing plaintiff to fall
and sustain injuries. In my view, the facts of this case render it
subject to the holding of the Court of Appeals in Melber v 6333 Main
St. (91 NY2d 759). There, the plaintiff was installing metal studs
into the top of a drywall and, in order to reach the height necessary
to complete his work, he stood on 42-inch stilts. At some point
during the course of his work, the plaintiff needed a clamp that was
located some distance away from the work area, and he “walked” on the
stilts down an open corridor to retrieve the clamp. In the process,
he tripped over electrical conduit protruding from the unfinished
floor and fell to the ground, sustaining injuries. The Court of
Appeals held that Labor Law § 240 (1) should be broadly construed but
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                                                         CA 10-02435

that the “extraordinary protections of the statute in the first
instance apply only to a narrow class of dangers--a determination
critical to the resolution of” the appeal in Melber (id. at 762). The
Court cited its decision in Rocovich v Consolidated Edison Co. (78
NY2d 509) and reiterated that “the statutory language did not itself
specify the hazards to be guarded against[] but rather focused on the
safety devices to be used to avoid them” (Melber, 91 NY2d at 762). In
Rocovich (78 NY2d at 511-512), the plaintiff worker injured his foot
and ankle when he fell into a 12-inch trough containing heated
industrial oil. In determining that Labor Law § 240 (1) did not
apply, the Court of Appeals stated that “it [was] difficult to imagine
how [the] plaintiff’s proximity to the 12-inch trough could have
entailed an elevation-related risk [that] called for any of the
protective devices of the types listed” in the statute (id. at 514-
515).

     With respect to the facts in Melber (91 NY2d at 763), the Court
concluded that conduit protruding from the floor was akin to a trough
filled with hot oil, inasmuch as it was a hazard against which
employees should be protected, but that neither hazard could be
avoided by proper placement or utilization of one of the safety
devices listed in Labor Law § 240 (1). The Court specified that the
stilts in Melber performed the function required of them, namely,
allowing the plaintiff to perform his work safely at a height, and it
noted that, had the stilts failed while the plaintiff was installing
the metal studs, “a different case would be presented” (id. at 764).
Nevertheless, the injury sustained by the plaintiff in Melber
“resulted from a separate hazard--electrical conduit protruding from
the floor,” and thus the Court concluded that the injury “flowed from
a deficiency in the device that was wholly unrelated to the hazard
[that] brought about its need in the first instance” (id. [internal
quotation marks omitted]).

     Here, as in Melber, the accident was not the result of elevation-
related work but, rather, it “was the result of a separate and
unrelated hazard,” namely, the unguarded hole (Primavera v Benderson
Family 1968 Trust, 294 AD2d 923, 924). As in Melber, none of the
safety devices enumerated in the statute would have prevented the
wheel of the scissor lift from entering the hole and causing the
scissor lift to tip over. Thus, I conclude that plaintiff is not
entitled to partial summary judgment on the Labor Law § 240 (1) claim
against defendants. Neither, however, are defendants entitled to
summary judgment dismissing that claim against them because there are
other potential theories of liability that plaintiff may pursue at
trial, including that he should have been provided with a lanyard and
safety harness to use while working in the scissor lift at an elevated
height (see generally Leniar v Metropolitan Tr. Auth., 37 AD3d 425,
426). Because plaintiff’s bill of particulars is so general that such
a theory could conceivably still be advanced, I see no reason to
search the record and grant summary judgment dismissing the section
240 (1) claim against defendants.

     PERADOTTO, J., dissents and votes to affirm in the following
Memorandum: I respectfully dissent because I cannot agree with the
                                 -4-                           670
                                                         CA 10-02435

majority that there is a triable issue of fact whether plaintiff’s
actions were the sole proximate cause of his injuries.

     This Labor Law and common-law negligence action arises out of an
accident that occurred during the construction of a large retail store
(hereafter, project). The concrete floor of the building contained
several three-foot by three-foot holes that were not guarded or
barricaded in any manner, although wooden pallets had been placed in
the holes as a safety measure. At the time of the accident, plaintiff
was installing struts on the interior ceiling joists using a scissor
lift raised to a height of approximately 20 feet. The task required
plaintiff to occasionally reposition the scissor lift to enable him to
reach other bolts on the same strut, as well as to move on to the next
strut. While plaintiff was repositioning the scissor lift to reach
the next strut, a wheel of the scissor lift entered one of the holes
in the floor, causing the lift to tip over and plaintiff to fall to
the ground. Plaintiff commenced this action against, inter alia,
Benchmark Main Transit Associates, LLC, the owner of the property, and
Christa Construction, LLC, the general contractor (collectively,
defendants). Supreme Court granted those parts of plaintiff’s motion
for partial summary judgment on liability with respect to the Labor
Law § 240 (1) claim against defendants. I would affirm.

     I agree with the majority that plaintiff met his initial burden
on those parts of the motion by establishing that the scissor lift
“failed while plaintiff was [engaged in] . . . work requiring the . .
. special protections” of Labor Law § 240 (1) (Melber v 6333 Main St.,
91 NY2d 759, 763-764). As the majority notes, plaintiff submitted
evidence establishing that, at the time of the accident, he was
standing on the raised scissor lift and was in the process of
installing metal struts to the interior roof joists. Further,
plaintiff “established the requisite causal link between his injuries
and the violation of defendants’ nondelegable duty to ensure that the
scissor lift was ‘so . . . placed and operated as to give proper
protection’ to plaintiff” (Ward v Cedar Key Assoc., L.P., 13 AD3d
1098, quoting § 240 [1]).

     Contrary to the conclusion of the majority, however, I conclude
that defendants failed to raise a triable issue of fact whether
plaintiff’s actions were the sole proximate cause of his injuries. In
opposition to the motion, defendants submitted the deposition
testimony of the foreman on the project, who testified that, on the
morning of the accident, he told plaintiff “to work in the center of
the building” and away from the holes, which were located on the
“sides” of the building. According to the foreman, plaintiff’s
accident occurred outside the area that the foreman defined as the
“center” of the building, although he could not recall how far away
from that area plaintiff was at the time of the accident. In viewing
photographs of the work site, the foreman could not identify any
“landmark” or other object demarcating the area he defined as the
center of the building. Notably, plaintiff’s employer was hired to
install struts throughout the entire building, including the area
where plaintiff’s accident occurred, and the task required plaintiff
to move the scissor lift around the building. In any event, even
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                                                         CA 10-02435

assuming, arguendo, that plaintiff was “specifically directed not to
operate the scissor lift in the area where the holes had been cut,” as
the majority states, defendants’ “nondelegable duty under [Labor Law
§] 240 (1) is not met merely by providing safety instructions . . .,
but by furnishing, placing and operating [safety] devices so as to
give [plaintiff] proper protection” (Ewing v ADF Constr. Corp., 16
AD3d 1085, 1086 [internal quotation marks omitted] [emphasis added];
see Haystrand v County of Ontario, 207 AD2d 978). Here, “the fact
that the scissor lift tipped establishes that it was not so ‘placed .
. . as to give proper protection’ to plaintiff” (Ward, 13 AD3d 1098,
quoting § 240 [1]). Thus, inasmuch as plaintiff established that the
accident was caused, at least in part, by a statutory violation, his
actions cannot be the sole proximate cause of his injuries (see Blake
v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290; Whiting v
Dave Hennig, Inc., 28 AD3d 1105, 1106).

     In determining that defendants raised a triable issue of fact
whether plaintiff’s actions were the sole proximate cause of the
accident, the majority points to evidence submitted by defendants
suggesting that plaintiff repositioned the raised lift “while looking
at the ceiling rather than where the lift was going.” That evidence,
however, raises at most an issue of “contributory negligence[, which]
is not a defense to a claim based on Labor Law § 240 (1)” (Stolt v
General Foods Corp., 81 NY2d 918, 920; see Cahill v Triborough Bridge
& Tunnel Auth., 4 NY3d 35, 39; Ferris v Benbow Chem. Packaging, Inc.,
74 AD3d 1831).




Entered:   July 8, 2011                         Patricia L. Morgan
                                                Clerk of the Court
