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

84
CA 15-00615
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


ANTHONY JOSEPH ALATI, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DIVIN BUILDERS, INC., DEFENDANT-APPELLANT,
MICHAEL FRIERY, DOING BUSINESS AS VIPER SIDING,
DEFENDANT-RESPONDENT,
ET AL., DEFENDANTS.


PHETERSON SPATORICO LLP, ROCHESTER (DERRICK A. SPATORICO OF COUNSEL),
FOR DEFENDANT-APPELLANT.

BRENNA BOYCE, PLLC, ROCHESTER (WILLIAM P. SMITH, JR., OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.

THE LAW FIRM OF JANICE M. IATI, P.C., PITTSFORD (CARRIE GALLAGHER OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Ann
Marie Taddeo, J.), entered January 20, 2015. The order granted
plaintiff’s motion for partial summary judgment and denied the cross
motion of defendant Divin Builders, Inc. for summary judgment
dismissing the complaint against it.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting those parts of the cross
motion of defendant Divin Builders, Inc. for summary judgment
dismissing plaintiff’s common-law negligence and Labor Law §§ 200 and
241 (6) causes of action against it except insofar as the section 241
(6) cause of action is based on the alleged violation of 12 NYCRR 23-
1.21 (b) (1) and (3) (iv), and dismissing the complaint against it to
that extent 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 from a ladder while installing a light fixture in the foyer of a
residence being built by Divin Builders, Inc. (defendant). At the
time of the accident, plaintiff was leaning over the top of his A-
Frame ladder to receive a screw or drill bit he had dropped, which had
been retrieved and was being handed to plaintiff by another
contractor, defendant Michael Friery, doing business as Viper Siding
(Friery). Plaintiff alleges that Friery improperly stepped on the
support “rungs” on the back of the ladder, and that the ladder
collapsed. According to Friery, however, the ladder “exploded” when
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                                                         CA 15-00615

plaintiff leaned over the top of the ladder. In any event, the ladder
broke into pieces, causing plaintiff to fall to the ground and sustain
injuries.

     In the complaint, plaintiff asserts causes of action for common-
law negligence and violations of Labor Law §§ 200, 240 (1), and 241
(6). Following discovery, plaintiff moved for partial summary
judgment against defendant on the issue of liability pursuant to
section 240 (1) and, insofar as relevant to this appeal, defendant
cross-moved for summary judgment dismissing the complaint against it.
Supreme Court granted the motion and denied the cross motion.

     We reject defendant’s contention that the court erred in granting
the motion for partial summary judgment and denying that part of the
cross motion for summary judgment seeking dismissal of the section 240
(1) cause of action. We conclude that plaintiff met his initial
burden of establishing entitlement to judgment as a matter of law.
Whatever the exact cause of the ladder’s collapse, the fact that the
ladder failed and plaintiff fell to the ground demonstrates that it
“ ‘was not so placed . . . as to give proper protection to him’ ”
(Kirbis v LPCiminelli, Inc., 90 AD3d 1581, 1582). The burden then
shifted to defendant to raise a triable issue of fact (see Zuckerman v
City of New York, 49 NY2d 557, 562), and we conclude that it failed to
do so. Even if the accident occurred as described by plaintiff,
defendant “failed to raise a triable issue of fact . . . whether
[Friery’s] act of stepping on the back of . . . plaintiff’s ladder
just before it broke was . . . ‘of such an extraordinary nature or so
attenuated from the statutory violation as to constitute a superseding
cause sufficient to relieve [it] of liability’ ” (Losito v Manlyn Dev.
Group, Inc., 85 AD3d 983, 984). Moreover, even assuming, arguendo,
that plaintiff was aware that there was scaffolding belonging to
another contractor in the garage at the work site, there is no
evidence in the record that plaintiff was aware that he was supposed
to use the scaffolding and yet chose not to do so (see Gallagher v New
York Post, 14 NY3d 83, 88), or that a scaffold would have been an
appropriate safety device for the work being done by plaintiff when he
sustained his injury.

     We further conclude that the affidavit of Vincent Falbo, one of
defendant’s owners, so contradicts his deposition testimony that its
submission “constitutes an attempt to raise feigned issues of fact
where none truly exists” (Dermody v Tilton, 85 AD3d 1682, 1683).
Because Falbo admitted that defendant had no employees, and the record
supports plaintiff’s assertion that he was an independent contractor,
we reject defendant’s further contention that this action is barred by
Workers’ Compensation Law § 11.

     We agree with defendant, however, that the court erred in denying
its cross motion for summary judgment insofar as it seeks dismissal of
the common-law negligence and Labor Law § 200 causes of action against
defendant, and we therefore modify the order accordingly. The record
is clear that defendant exercised no supervisory control over the
injury-producing work, and that the accident arose from plaintiff’s
methods and manner of work (see Lombardi v Stout, 80 NY2d 290, 295;
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                                                         CA 15-00615

Gillis v Brown, 133 AD3d 1374, 1376). We further agree with defendant
that the court should have granted summary judgment dismissing the
Labor Law § 241 (6) cause of action against it except insofar as it is
based on the alleged violation of 12 NYCRR 23-1.21 (b) (1) and (3)
(iv), and we therefore further modify the order accordingly. Those
regulations are both sufficiently specific to support a violation of
section 241 (6) and applicable to the facts of this case (see
Przyborowski v A&M Cook, LLC, 120 AD3d 651, 654; Soodin v Fragakis, 91
AD3d 535, 536). Subsection (b) (4) of that regulation, which
plaintiff also asserts as a basis for a violation of section 241 (6),
is inapplicable to the facts of this case, and plaintiff has abandoned
his reliance on all other regulations recited in his bill of
particulars.




Entered:   March 18, 2016                      Frances E. Cafarell
                                               Clerk of the Court
