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

569
CA 11-01462
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


RUSSELL R. RAST AND DEBORAH RAST, INDIVIDUALLY
AND AS HUSBAND AND WIFE,
PLAINTIFFS-RESPONDENTS-APPELLANTS,

                    V                               MEMORANDUM AND ORDER

WACHS ROME DEVELOPMENT, LLC,
DEFENDANT-APPELLANT-RESPONDENT,
SCOTT QUICK, DOING BUSINESS AS SCOTT QUICK
CONSTRUCTION, AND SCOTT QUICK CONSTRUCTION, INC.,
DEFENDANTS-RESPONDENTS.


GOLDBERG SEGALLA LLP, ALBANY (MATTHEW S. LERNER OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT.

DIXON & HAMILTON, LLP, GETZVILLE (DENNIS P. HAMILTON OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS-APPELLANTS.


     Appeal and cross appeal from an order of the Supreme Court,
Wyoming County (Mark H. Dadd, A.J.), entered April 15, 2011 in a
personal injury action. The order granted in part the motion of
plaintiffs for partial summary judgment and granted in part the cross
motion of defendants Scott Quick, doing business as Scott Quick
Construction, and Scott Quick Construction, Inc. for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion in its entirety
and denying the cross motion in its entirety and as modified the order
is affirmed without costs.

     Memorandum: Plaintiffs commenced this Labor Law and common-law
negligence action seeking damages for injuries sustained by Russell R.
Rast (plaintiff) when he fell from a roof to the ground. Defendant
Wachs Rome Development, LLC (Wachs) hired plaintiff’s employer as a
general contractor to rebuild a strip mall owned by Wachs. Wachs also
hired defendant Scott Quick, doing business as Scott Quick
Construction (Quick), to repair the roof. At the time of the
accident, Quick had started the roof repairs but had left the job site
to work on a project in another state. Upon arriving at work,
plaintiff was informed that the roof was leaking and ruining the
newly-installed drywall. Plaintiff accessed the roof to investigate
and found that the roofing membrane that Quick had left “hanging over
the side of the building” had “folded over” from the wind and was
causing water to pool on the flat roof and also to flow directly
                                 -2-                           569
                                                         CA 11-01462

inside the building. Plaintiff pushed the membrane back over the side
of the roof and swept the water off the roof. He also contacted
Quick, who indicated that he would not be back in town until that
night. Several hours later, the membrane had again folded over, so
plaintiff returned to the roof to repeat his earlier task. This time,
when he finished the task and walked toward the scissor lift to return
to the ground, he fell from the roof to the ground.

     Supreme Court granted that part of plaintiffs’ motion for partial
summary judgment on liability on the Labor Law § 240 (1) claim against
Wachs, but denied that part of the motion with respect to Quick and
defendant Scott Quick Construction, Inc. We note that Quick, doing
business as Scott Quick Construction, rather than defendant Scott
Quick Construction, Inc., was hired to perform the work in question,
but we nevertheless treat the two defendants as one entity, i.e., the
Quick defendants, inasmuch as Quick testified at his deposition that
the company began as a “d/b/a,” was thereafter incorporated, and then
returned to “d/b/a” status. The court further granted the cross
motion of the Quick defendants in part by dismissing the Labor Law §
240 (1) and § 241 (6) claims against them. Wachs now appeals and
plaintiffs cross-appeal. We conclude that the court should have
granted plaintiffs’ motion for partial summary judgment against both
Wachs and the Quick defendants and should have denied the cross motion
of the Quick defendants in its entirety. We therefore modify the
order accordingly.

     Addressing first plaintiffs’ cross appeal with respect to the
Quick defendants’ cross motion, we agree with plaintiffs that the
Quick defendants are liable as an agent of the owner “for injuries
sustained in those areas and activities within the scope of the work
delegated to [them]” (Piazza v Frank L. Ciminelli Constr. Co., Inc.,
12 AD3d 1059, 1060; see Russin v Louis N. Picciano & Son, 54 NY2d 311,
317-318). While the Quick defendants had no control over plaintiff’s
work, they had control over the area where plaintiff was injured.
Plaintiffs are asserting a defective condition of the work site rather
than the manner of the work, and the Quick defendants must therefore
establish that they did not have “supervision or control of the safety
of the area involved in the incident” (Piazza, 12 AD3d at 1061; see
Martinez v Tambe Elec., Inc., 70 AD3d 1376, 1377), which they failed
to do.

     Addressing next the appeal by Wachs and the cross appeal by
plaintiffs with respect to plaintiffs’ motion, we agree with
plaintiffs that both Wachs and the Quick defendants are liable under
Labor Law § 240 (1). It is undisputed that there were no safety
devices in place to prevent the accident, and plaintiffs established
that the absence of the safety devices was a proximate cause of
plaintiff’s injuries (see Baker v Essex Homes of W. N.Y., Inc., 55
AD3d 1332, 1332; Ewing v ADF Constr. Corp., 16 AD3d 1085, 1086), and
Wachs and the Quick defendants failed to raise a triable issue of
fact. Contrary to the contention of Wachs, plaintiff’s conduct in
accessing the roof to investigate and attempt to fix the problem was
within the scope of his employment (see Razzak v NHS Community Dev.
Corp., 63 AD3d 708, 708-709; Calaway v Metro Roofing & Sheet Metal
                                 -3-                           569
                                                         CA 11-01462

Works, 284 AD2d 285, 286; see also Destefano v City of New York, 39
AD3d 581, 582). Plaintiff’s employer testified at his deposition that
plaintiff was responsible for job site safety, and when plaintiff was
deposed he testified that he was concerned that the pooling water
would cause the roof to collapse. Although Wachs correctly notes that
the agreement between it and plaintiff’s employer expressly excluded
repairs and alterations to the roof, plaintiff was not repairing or
altering the roof at the time of the accident. Instead, he was simply
pulling back the roofing membrane that had blown over, and he was
sweeping water off the roof. Wachs never prohibited employees of
plaintiff’s employer from accessing the roof, and indeed the record
establishes that they had done so on previous occasions in furtherance
of their duties in rebuilding the strip mall. Finally, we reject the
contention of Wachs that plaintiff’s actions were the sole proximate
cause of his injuries. Where, as here, a plaintiff establishes that
the absence of safety devices was a proximate cause of the plaintiff’s
injuries, the “plaintiff cannot be solely to blame for [the injuries]”
(Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290; see
Gizowski v State of New York, 66 AD3d 1348, 1349; Ewing, 16 AD3d at
1086).




Entered:   April 20, 2012                       Frances E. Cafarell
                                                Clerk of the Court
