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

302
CA 15-01563
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.


JEREMIAH CULLEN, PLAINTIFF-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

AT&T, INC. AND AMERICAN TOWER, L.P.,
DEFENDANTS-APPELLANTS.


HAVKINS ROSENFELD RITZERT & VARRIALE, LLP, NEW YORK CITY (JARETT L.
WARNER OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

CHERUNDOLO LAW FIRM, PLLC, SYRACUSE (JOHN C. CHERUNDOLO OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the   Supreme Court, Oneida County (Norman
I. Siegel, J.), entered November   17, 2014. The order, among other
things, granted the cross motion   of plaintiff for partial summary
judgment pursuant to Labor Law §   240 (1).

     It is hereby ORDERED that the order so appealed from is modified
on the law by denying plaintiff’s cross motion for partial summary
judgment on liability under Labor Law § 240 (1) and as modified the
order is affirmed without costs.

     Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action seeking damages for injuries he allegedly sustained
while working on a cell phone tower owned by defendant American Tower,
L.P. and leased to New Cingular Wireless PCS, LLC, sued herein as
defendant AT&T, Inc. (AT&T). Plaintiff’s employer was hired by AT&T’s
management company to service its towers, and plaintiff and a coworker
were dispatched on the date of the accident to investigate and remedy
an alarm indicating that the subject tower was not functioning
properly. Plaintiff’s coworker conducted diagnostic tests from the
ground while plaintiff climbed the tower to examine whether the
malfunction related to one of six tower mounted amplifiers (TMAs)
located on a boom extending out from the center pole of the tower at a
height of approximately 180 feet. Plaintiff took approximately 20 to
30 minutes to climb to the top of the tower and, after he stopped to
assess the situation, his coworker informed him that the alarm was
likely the result of a broken TMA. In order to observe the TMA,
plaintiff connected his shock absorbing lanyard to the tower,
proceeded onto the boom, and then used two slings or “chokers” to
lower himself to the TMA, which was about three or four feet below the
boom. After plaintiff and his coworker determined that the TMA needed
to be replaced, plaintiff intended to return to the center pole of the
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tower and set up a pulley to haul a replacement TMA up to his
location. Plaintiff grabbed the slings and pulled himself upward, but
he slipped and fell as he attempted to maneuver himself back onto the
boom. According to plaintiff, when he fell, both slings latched
around his wrists and caused a sudden “jerk and pull” movement, which
allegedly caused his injuries. As relevant on appeal, Supreme Court
granted plaintiff’s cross motion for partial summary judgment on
liability under Labor Law § 240 (1) and denied that part of
defendants’ cross motion for summary judgment dismissing the section
240 (1) cause of action.

     Contrary to defendants’ contention, the court properly determined
that plaintiff was engaged in a protected activity, i.e., repair, at
the time of the accident. It is well settled that section 240 (1)
“ ‘does not apply to routine maintenance in a non-construction,
non-renovation context’ ” (Ozimek v Holiday Val., Inc., 83 AD3d 1414,
1415). “[D]elin[e]ating between routine maintenance and repairs is
frequently a close, fact-driven issue . . . , and [t]hat distinction
depends upon whether the item being worked on was inoperable or
malfunctioning prior to the commencement of the work . . . , and
whether the work involved the replacement of components damaged by
normal wear and tear” (Wolfe v Wayne-Dalton Corp., 133 AD3d 1281, 1282
[internal quotation marks omitted]).

     Here, plaintiff testified that he never performed preventive
maintenance on the towers, and that he and his coworkers were
dispatched to a tower only when something was in need of repair (cf.
Barbarito v County of Tompkins, 22 AD3d 937, 938-939, lv denied 7 NY3d
701). Indeed, plaintiff’s submissions establish that an item on the
tower was malfunctioning prior to commencement of the work, and that
plaintiff was injured after climbing approximately 180 feet to conduct
an investigation into the cause of the alarm and to remedy the
malfunction (see Caraciolo v 800 Second Ave. Condominium, 294 AD2d
200, 201-202; Craft v Clark Trading Corp., 257 AD2d 886, 887). Where,
as here, “ ‘a person is investigating a malfunction, . . . efforts in
furtherance of that investigation are protected activities under Labor
Law § 240 (1)’ ” (Ozimek, 83 AD3d at 1415). We reject defendants’
contention that liability under section 240 (1) is foreclosed on the
ground that the investigation had concluded and plaintiff was in the
process of returning to the center pole to haul up the replacement TMA
when the fall occurred (see Pakenham v Westmere Realty, LLC, 58 AD3d
986, 987-988). As the Court of Appeals has emphasized, “ ‘[i]t is
neither pragmatic nor consistent with the spirit of the statute to
isolate the moment of injury and ignore the general context of the
work’ ” (Saint v Syracuse Supply Co., 25 NY3d 117, 124). Further, the
record does not support defendants’ contention that replacement of the
TMA was necessitated by damage due to normal wear and tear (see
Parente v 277 Park Ave. LLC, 63 AD3d 613, 614; cf. Selak v Clover
Mgt., Inc., 83 AD3d 1585, 1586-1587). Plaintiff’s submissions thus
establish that he was engaged in the repair of the TMA on the tower
rather than routine maintenance, and we conclude that defendants
failed to raise a triable issue of fact in that respect (see Wolfe,
133 AD3d at 1282-1283; see generally Zuckerman v City of New York, 49
NY2d 557, 562).
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                                                         CA 15-01563

     We agree with defendants, however, that the court erred in
granting plaintiff’s cross motion for partial summary judgment on
liability under section 240 (1). We therefore modify the order
accordingly. It is well settled that, “[t]o succeed on a cause of
action pursuant to Labor Law § 240 (1), the plaintiff must establish
that an owner or contractor failed to provide appropriate safety
devices at an elevated work site and that such violation of the
statute was the proximate cause of his [or her] injuries” (Ramsey v
Leon D. DeMatteis Constr. Corp., 79 AD3d 720, 722; see Robinson v East
Med. Ctr., LP, 6 NY3d 550, 554; Felker v Corning Inc., 90 NY2d 219,
224-225). “[A]n accident alone does not establish a Labor Law § 240
(1) violation or causation” (Blake v Neighborhood Hous. Servs. of N.Y.
City, 1 NY3d 280, 289). Moreover, “ ‘[t]he question of whether [a]
device provided proper protection within the meaning of Labor Law
§ 240 (1) is ordinarily a question of fact, except in those instances
where the unrefuted evidence establishes that the device collapsed,
slipped or otherwise failed to perform its [intended] function of
supporting the worker and his or her materials’ ” (Musselman v Charles
A. Gaetano Constr. Corp., 277 AD2d 691, 692; see Trippi v Main-Huron,
LLC, 28 AD3d 1069, 1070).

     Even assuming, arguendo, that plaintiff met his initial burden on
his cross motion, we conclude that there are issues of fact whether
the safety devices provided proper protection, and whether the absence
of additional safety devices was a proximate cause of plaintiff’s
injuries (see Ortiz v Turner Constr. Co., 28 AD3d 627, 629; see also
Ramsey, 79 AD3d at 722; Brown v Concord Nurseries, Inc., 37 AD3d 1076,
1077). In opposition to plaintiff’s cross motion, defendants
submitted an expert affidavit sufficient to raise an issue of fact
whether the safety devices provided to plaintiff were adequate for his
work (see Miller v Spall Dev. Corp., 45 AD3d 1297, 1298). Although
the deposition testimony of plaintiff and his coworker and the
affidavit of plaintiff’s expert indicated that additional safety
devices should have been provided, we conclude that the conflicting
opinion of defendants’ expert raises an issue of fact whether the
absence of other safety devices proximately caused plaintiff’s
injuries (see Scribner v State of New York, 130 AD3d 1207, 1209-1210;
Kropp v Town of Shandaken, 91 AD3d 1087, 1090; Miller, 45 AD3d at
1298).

     All concur except WHALEN, P.J., and LINDLEY, J., who dissent and
vote to affirm in accordance with the following memorandum: We
respectfully dissent in part and would affirm because we conclude that
Supreme Court properly granted plaintiff’s cross motion for partial
summary judgment on liability under Labor Law § 240 (1). As noted by
the majority, plaintiff was working on a cell phone tower
approximately 180 feet above the ground with his full body harness
tied off to a part of the tower, he had used “choker slings” that
looked like “giant rubber band[s]” to lower himself down from a
horizontal boom for access to a tower mounted amplifier, and he
sustained injuries when the slings latched around his wrists and
“jerk[ed]” him to a stop after he slipped and fell from the boom in
the course of climbing back onto it. The record further establishes
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                                                         CA 15-01563

that prior to the accident plaintiff had asked his supervisor multiple
times for additional safety equipment, including a “self-descending
lanyard,” to enable him to “get down to where [he] needed to work,”
that he had made a further request for a synthetic rope ladder to his
employer’s “safety guy,” and that his requests were not granted. In
addition, plaintiff testified at his deposition that it had been
necessary for him to wrap the slings around his arms and support his
own weight in order to pull himself to a position from which he could
swing one foot onto the boom, whereas a rope ladder would have enabled
him to “stabilize [him]self” and thus would have “made it a lot
easier” to climb back onto the boom, and a self-descending lanyard
would have “[done] all of the work” itself to raise and lower him.

     In support of his cross motion, plaintiff submitted, inter alia,
his deposition testimony and the affidavit of an expert who asserted
that the use of the slings as described above exposed plaintiff to
unreasonable danger, and that defendants’ failure to furnish
additional safety equipment was a proximate cause of plaintiff’s
injuries. In opposition to the cross motion, defendants submitted,
inter alia, the affidavit of an expert who asserted that the equipment
provided to plaintiff was consistent with industry standards, that the
adequacy of the protection afforded was evident from “the fact that
plaintiff did not fall to the ground when he lost his footing,” and
that additional equipment “would not have provided plaintiff with any
measure of safety materially different from” that which he already
had.

     In our view, plaintiff made a prima facie showing that the
absence of necessary safety equipment, i.e., the inadequacy of the
slings alone to protect him against elevation-related risks as he went
back up to the boom, was a proximate cause of his injuries, and that
he was therefore entitled to partial summary judgment on liability
pursuant to Labor Law § 240 (1) (see Felker v Corning Inc., 90 NY2d
219, 224-225; Gizowski v State of New York, 66 AD3d 1348, 1349; see
generally Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 97, rearg
denied 25 NY3d 1195), particularly in light of his unheeded requests
for additional safety devices (see Keenan v Simon Prop. Group, Inc.,
106 AD3d 586, 588-589).

     We also conclude that defendants failed to raise a triable issue
of fact in opposition to plaintiff’s cross motion. Defendants made no
showing that plaintiff misused or failed to use any safety device such
that his own conduct may have been the sole proximate cause of his
injuries (see Gallagher v New York Post, 14 NY3d 83, 88-89; cf.
Robinson v East Med. Ctr., LP, 6 NY3d 550, 554-555), and we cannot
agree with the majority that there is a reasonable view of the
evidence in which plaintiff was provided with proper protection. The
reliance on industry standards by defendants’ expert is unavailing
because Labor Law § 240 (1) is a self-executing statute that sets its
own standard for liability (see Zimmer v Chemung County Performing
Arts, 65 NY2d 513, 523-524, rearg denied 65 NY2d 1054; Cruz v
Cablevision Sys. Corp., 120 AD3d 744, 746-747), and the fact that
plaintiff’s equipment “arrest[ed] his fall before he struck the
ground” does not establish that it afforded proper protection inasmuch
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                                                         CA 15-01563

as it nonetheless “proved inadequate to shield him from gravity-
related injuries” (Lopez v Boston Props. Inc., 41 AD3d 259, 260; see
Rich v West 31st St. Assoc., LLC, 92 AD3d 433, 434). In other words,
the intended function of the safety equipment used by plaintiff was to
protect him against any type of gravity-related injury while he worked
on the tower, and the fact that the slings themselves caused his
injuries while he was using them as intended establishes that they
failed to perform that function (cf. Trippi v Main-Huron, LLC, 28 AD3d
1069, 1070).

     Finally, to the extent that defendants’ expert opined that other
devices would not have provided plaintiff with any greater protection
than the slings provided, i.e., that the accident could have happened
the same way even if other devices had been used, we conclude that his
opinion is “based on speculation rather than record facts” and thus is
insufficient to defeat plaintiff’s cross motion (Urbano v Rockefeller
Ctr. N., Inc., 91 AD3d 549, 550; see Strojek v 33 E. 70th St. Corp.,
128 AD3d 490, 491; Robinson v NAB Constr. Corp., 210 AD2d 86, 87; see
generally Diaz v New York Downtown Hosp., 99 NY2d 542, 544).




Entered:   June 10, 2016                        Frances E. Cafarell
                                                Clerk of the Court
