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

519
CA 12-01962
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND WHALEN, JJ.


MARC A. NICOMETI, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

THE VINEYARDS OF FREDONIA, LLC,
WINTER-PFOHL, INC., DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.
--------------------------------------------
SCOTT PFOHL, ET AL., THIRD-PARTY PLAINTIFFS,

                    V

WESTERN NEW YORK PLUMBING-ELLICOTT PLUMBING
AND REMODELING CO., INC.,
THIRD-PARTY DEFENDANT-APPELLANT.


KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (ROBERT D. LEARY OF COUNSEL),
FOR DEFENDANT-APPELLANT WINTER-PFOHL, INC.

BARTH SULLIVAN BEHR, BUFFALO (LAURENCE D. BEHR OF COUNSEL), FOR
DEFENDANT-APPELLANT THE VINEYARDS OF FREDONIA, LLC.

BAXTER SMITH & SHAPIRO, P.C., WEST SENECA (LOUIS B. DINGELDEY, JR., OF
COUNSEL), FOR THIRD-PARTY DEFENDANT-APPELLANT.

THE BALLOW LAW FIRM, P.C., BUFFALO (JASON A. RICHMAN OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeals from an order of the Supreme Court, Erie County (Thomas
J. Drury, J.), entered June 12, 2012. The order, inter alia, granted
the motion of plaintiff for partial summary judgment on liability
against defendants The Vineyards of Fredonia, LLC and Winter-Pfohl,
Inc.

     It is hereby ORDERED that the order so appealed from is modified
on the law by denying plaintiff’s motion and as modified the order is
affirmed without costs.

     Memorandum: Plaintiff commenced this common-law negligence and
Labor Law action seeking damages for injuries he sustained when he
fell at a construction site. Plaintiff moved for partial summary
judgment on the issue of liability with respect to the Labor Law § 240
(1) claim, defendant Winter-Pfohl, Inc., cross-moved for, inter alia,
summary judgment dismissing that claim against it, defendant The
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                                                         CA 12-01962

Vineyards of Fredonia, LLC (The Vineyards) opposed plaintiff’s motion
and also sought dismissal of the Labor Law § 240 (1) claim, and third-
party defendant opposed both the motion and the cross motion. The
Vineyards, Winter-Pfohl, Inc., and third-party defendant
(collectively, defendants) appeal from an order that, among other
things, granted the motion and denied the cross motion.

     Contrary to the contention of defendants, Supreme Court properly
concluded that plaintiff’s fall was the result of an elevation-related
risk for which Labor Law § 240 (1) provides protection. Plaintiff
alleged that he fell when his stilts slipped on ice while he was
installing insulation at an elevated level, i.e., the ceiling. It is
well settled that “[t]he contemplated hazards [covered by the statute]
are those related to the effects of gravity where protective devices
are called for either because of a difference between the elevation
level of the required work and a lower level or a difference between
the elevation level where the worker is positioned and the higher
level of the materials or load being hoisted or secured” (Rocovich v
Consolidated Edison Co., 78 NY2d 509, 514). Here, the “risk was
created by the need to elevate plaintiff to the height [of the
ceiling], and the [stilts were] the . . . safety device provided to
protect the worker from the risk inherent in having to work at a
height” (Felker v Corning Inc., 90 NY2d 219, 224). Inasmuch as the
stilts “failed while plaintiff was installing the [insulation on the
ceiling]—work requiring the statute’s special protections” (Melber v
6333 Main St., 91 NY2d 759, 763-764), the court properly concluded
that the statute applies to plaintiff’s section 240 (1) claim.
Consequently, the court properly denied the cross motion.

     Nevertheless, we agree with defendants’ further contention that
the court erred in granting the motion because we conclude that there
is a triable issue of fact whether plaintiff’s actions were the sole
proximate cause of his injuries. Although plaintiff met his initial
burden on the motion (see generally Alvarez v Prospect Hosp., 68 NY2d
320, 324), defendants raised a triable issue of fact by introducing
evidence that he was directed not to work in the area where the ice
was located. Thus, “ ‘[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’ ” (Thome v Benchmark Main Tr. Assoc., LLC, 86
AD3d 938, 940). We therefore modify the order accordingly.

     We have considered defendants’ remaining contentions and conclude
that they are without merit.

     All concur except FAHEY and WHALEN, JJ., who dissent and vote to
affirm in the following Memorandum: We respectfully dissent. We
agree with the majority that Supreme Court properly concluded that
plaintiff is a covered worker under Labor Law § 240 (1). We cannot
agree with the majority, however, that there is a triable issue of
fact whether plaintiff’s conduct was the sole proximate cause of the
                                 -3-                           519
                                                         CA 12-01962

accident. We therefore conclude that the court properly granted
plaintiff’s motion for partial summary judgment on the issue of
liability under Labor Law § 240 (1) and would affirm.

     This action arises out of an accident that occurred as plaintiff
worked from stilts to install insulation on a ceiling at an apartment
complex. The stilts were set in such a way that the bottoms of
plaintiff’s feet were between three and five feet off of the floor.
Plaintiff and plaintiff’s supervisor (supervisor) both testified at
their depositions that they saw ice on the floor of the area in which
plaintiff was working, and the supervisor recalled that the ice
covered approximately a four-foot by four-foot area and was not more
than one-eighth of an inch thick. Although, in his words, the ice was
“clear like water,” the supervisor merely told plaintiff “not to be in
that area,” and took no measures to protect plaintiff from that
hazard. Indeed, despite the fact that plaintiff’s work required
plaintiff to look up and away from the floor to complete his assigned
task, the supervisor did not guard the ice with caution tape,
barricades or similar devices, and thus left plaintiff unprotected
from that hazard.

     As the majority notes, plaintiff alleges that he fell when the
stilts slipped on the ice while he was working. We respectfully
disagree with the majority that there is an issue of fact whether
plaintiff’s conduct was the sole proximate cause of his accident
inasmuch as the record establishes that plaintiff was not provided
with a proper safety device. “[T]he nondelegable duty . . . under
Labor Law § 240 (1) ‘is not met merely by providing safety
instructions . . . , but [rather is met] by furnishing, placing and
operating such devices so as to give [plaintiff] proper protection’ ”
(Long v Cellino & Barnes, P.C., 68 AD3d 1706, 1707 [emphasis added and
internal quotation marks omitted]). In our view, “stilts on ice” is
the wrong device from which to work at an elevation, and we thus
conclude that plaintiff was not furnished with a proper safety device
as a matter of law (see Ewing v ADF Constr. Corp., 16 AD3d 1085,
1086). “Where, as here, there is a statutory violation that is a
proximate cause of the injuries, ‘plaintiff cannot be solely to blame
for [it]’ ” (id., quoting Blake v Neighborhood Hous. Servs. of N.Y.
City, 1 NY3d 280, 290). Even assuming, arguendo, that plaintiff was
provided with proper protection, we further conclude that his actions
cannot be the sole proximate cause of the accident because under the
circumstances of this case the stilts were not “ ‘so . . . placed . .
. as to give proper protection’ to plaintiff” (Ward v Cedar Key
Assoc., L.P., 13 AD3d 1098, 1098; see Blake, 1 NY3d at 290).

     Finally, we note that Thome v Benchmark Main Tr. Assoc., LLC (86
AD3d 938) does not compel a different result here. In that Labor Law
§ 240 (1) case, the majority concluded that there was a question of
fact whether the plaintiff fell as a result of his own misuse of a
scissor lift, and whether that conduct was the sole proximate cause of
his injuries (id. at 939-940). There, the defendants tendered
“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
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                                                         CA 12-01962

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” (id.). The defendants also offered “evidence that plaintiff
drove the raised lift into that area while looking at the ceiling
rather than where the lift was going” (id. at 940).

     Our review of the record in Thome, however, reveals that the
plaintiff in that case was not merely instructed to stay away from a
hazard. The “holes” in question in Thome, although not protected by
caution tape, barricades or cones, were marked by wood pallets that
“came up a little bit” inside those depressions, which measured three
feet by three feet and were six inches deep. Although those wood
pallets were apparently difficult to distinguish from the depressions
at issue at the time of the accident because it had rained earlier on
the morning of the accident, the fact remains that there was at least
some demarcation of the hazard in that case. Here, the ice that
formed the dangerous condition covered an unmarked four-foot by four-
foot area. Moreover, the ice was undeniably unremarkable to the
extent that it was not more than one-eighth of an inch thick and, in
the supervisor’s words “clear like water.” Consequently, Thome does
not bind us here.




Entered:   June 14, 2013                        Frances E. Cafarell
                                                Clerk of the Court
