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

416
CA 16-01604
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


DAVID VIDEAN, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

NRG ENERGY, INC., NRG HUNTLEY OPERATIONS, INC.,
AND HUNTLEY POWER, LLC, DEFENDANTS-RESPONDENTS.


KAMMHOLZ MESSINA, LLP, VICTOR (BRADLEY P. KAMMHOLZ OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

GOLDBERG SEGALLA, LLP, SYRACUSE (KENNETH M. ALWEIS OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Livingston County
(Dennis S. Cohen, A.J.), entered January 28, 2016. The order granted
defendants’ motion for summary judgment dismissing plaintiff’s
complaint and denied plaintiff’s cross motion for partial summary
judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the motion in part and
reinstating the complaint with respect to the Labor Law § 240 (1)
claim, and as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action seeking damages for injuries that he sustained when
he stepped on the midrail of a scaffold, began to fall, and grabbed
onto a pipe to stop his fall. At the time of the incident, he was
working for API Construction Services (API), which had been
subcontracted to perform insulation work on property allegedly owned
by defendants. The scaffold was supplied by another subcontractor,
Patton Construction (Patton), and only employees of Patton were
authorized to assemble, modify or adjust the scaffolds.

     Defendants moved for summary judgment dismissing the complaint in
its entirety. Plaintiff opposed the motion only insofar as it sought
dismissal of the Labor Law §§ 240 (1) and 241 (6) claims, and cross-
moved for partial summary judgment on liability on the section 240 (1)
claim. Supreme Court granted defendants’ motion in its entirety and
denied plaintiff’s cross motion. We agree with plaintiff that the
court erred in granting that part of defendants’ motion with respect
to the section 240 (1) claim, and we therefore modify the order
accordingly.
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                                                         CA 16-01604

     Contrary to defendants’ contention, they failed to establish as a
matter of law that plaintiff’s actions were the sole proximate cause
of the accident, i.e., that “plaintiff had adequate safety devices
available; that he knew both that they were available and that he was
expected to use them; that he chose for no good reason not to do so;
and that had he not made that choice he would not have been injured”
(Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40; see Fazekas
v Time Warner Cable, Inc., 132 AD3d 1401, 1403).

     Defendants’ submissions establish that, on the day of the
accident, there were planks missing from the scaffold that plaintiff
needed to use for his work, and the scaffold itself was too low for
plaintiff to reach the area where he needed to work. Inasmuch as only
Patton employees could modify the scaffolds, a request was made for
the scaffold to be adjusted or modified for plaintiff’s use. Several
hours later, during plaintiff’s afternoon break, he was informed that
the scaffold was being modified. Upon returning to his work area
following his break, plaintiff observed that a green tag had been
placed on the scaffold, which meant that the scaffold was ready for
use. When plaintiff climbed the scaffold, he realized that it was
still too short to reach the area of his work, i.e., the scaffold was
inadequate for the work plaintiff needed to perform. Although two of
plaintiff’s supervisors had directed him to wait until the required
modifications could be performed, plaintiff testified during his
deposition that a third supervisor subsequently told him, “ ‘It’s got
to be done. Get up there and get it done. Do what you have to do to
get it done. . . Do whatever to get it done.’ ”

     Inasmuch as a modification to the scaffold was required and could
have taken hours to be performed, we conclude that there are triable
issues of fact whether an adequate safety device was “readily
available” for plaintiff’s use (Montgomery v Federal Express Corp., 4
NY3d 805, 806; see Miro v Plaza Constr. Corp., 9 NY3d 948, 949; cf.
Robinson v East Med. Ctr., LP, 6 NY3d 550, 554-555). Moreover, based
on plaintiff’s testimony describing the third supervisor’s
instructions, we conclude that there are triable issues of fact
whether plaintiff chose “for no good reason” not to wait for the
scaffold to be modified (Cahill, 4 NY3d at 40; see DeRose v
Bloomingdale’s Inc., 120 AD3d 41, 45-47). Although the third
supervisor denied making such a comment, that denial merely
establishes that neither party is entitled to summary judgment on the
Labor Law § 240 (1) claim.

     With respect to the dismissal of plaintiff’s Labor Law § 241 (6)
claim, we note that, in his bills of particulars, plaintiff asserted
numerous violations of the Industrial Code (12 NYCRR 23-1.1 et seq.)
in support of that claim. In opposition to defendants’ motion,
however, plaintiff relied on only sections 23-5.1 (e) (1), 23-5.1 (e)
(5) and 23-5.1 (f). On this appeal, plaintiff contends that the court
erred in dismissing the Labor Law § 241 (6) claim only insofar as it
was based on the violation of sections 23-5.1 (e) (1) and (5). We
thus conclude that plaintiff has abandoned any reliance on the
sections cited in his bills of particulars, except for sections 23-5.1
(e) (1) and (5) “by failing to address them either in the motion court
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                                                         CA 16-01604

or on appeal” (Cardenas v One State St., LLC, 68 AD3d 436, 438; see
Roosa v Cornell Real Prop. Servicing, Inc., 38 AD3d 1352, 1354; see
generally Ciesinski v Town of Aurora, 202 AD2d 984, 984).

     Contrary to plaintiff’s contention, the court properly dismissed
his Labor Law § 241 (6) claim insofar as it was based on the alleged
violations of 12 NYCRR 23-5.1 (e) (1) and (5) because defendants
established as a matter of law that any alleged violation of those
sections was not a proximate cause of plaintiff’s accident (see
generally Schroeder v Kalenak Painting & Paperhanging, Inc., 27 AD3d
1097, 1099, affd 7 NY3d 797; Carroll v County of Erie, 48 AD3d 1076,
1077). Those Industrial Code sections concern the size and placement
of planks on a scaffold, and plaintiff admitted at his deposition that
his accident did not occur because of any problems with the planks on
the scaffold. Rather, his accident occurred because the scaffold was
not high enough to enable him to reach his work area. We thus
conclude that, even if there are triable issues of fact whether planks
were missing at the time the accident occurred, which would render
those sections applicable to the facts of this case (see Klimowicz v
Powell Cove Assoc., LLC, 111 AD3d 605, 607), defendants established as
a matter of law that plaintiff’s accident did not result from any
violation of those sections. Plaintiff, in opposition to the motion,
failed to raise a triable issue of fact (see generally Zuckerman v
City of New York, 49 NY2d 557, 562).




Entered:   April 28, 2017                       Frances E. Cafarell
                                                Clerk of the Court
