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

65
CA 14-01132
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND WHALEN, JJ.


JAMES ZIMMER, PLAINTIFF-RESPONDENT-APPELLANT,

                    V                              MEMORANDUM AND ORDER

TOWN OF LANCASTER INDUSTRIAL DEVELOPMENT AGENCY,
AMERICAN SALES COMPANY, INC. AND AMERICAN SALES
COMPANY, LLC, DEFENDANTS-APPELLANTS-RESPONDENTS.


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

DOLCE PANEPINTO, P.C., BUFFALO (SEAN E. COONEY OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court, Erie
County (Frederick J. Marshall, J.), entered October 11, 2013. The
order granted plaintiff’s motion for partial summary judgment and
granted in part and denied in part defendants’ cross motion for
summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting those parts of the cross
motion seeking summary judgment dismissing the Labor Law § 200 and
common-law negligence causes of action and by denying that part of the
cross motion seeking summary judgment dismissing the Labor Law § 241
(6) cause of action insofar as it is based on the alleged violation of
12 NYCRR 23-1.21 (d) (2) and reinstating that cause of action to that
extent, 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 sustained while
attempting to repair a rooftop commercial heating and air conditioning
unit. Plaintiff’s wrist was fractured when the upper section of a
four-foot extension ladder fell and struck plaintiff while plaintiff
and a coworker were standing on the ground, attempting to set the
ladder in place. Although the ladder was equipped with automatic
positive acting locks to prevent and/or halt the uncontrolled
retraction of the upper extension, those devices were iced-over at the
time of plaintiff’s accident as a result of the ladder having been
stored outside the night before. Supreme Court granted plaintiff’s
motion for partial summary judgment on liability on the Labor Law §
240 (1) cause of action and granted only in part defendants’ cross
motion for summary judgment dismissing the complaint, dismissing the
Labor Law § 241 (6) cause of action.
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                                                         CA 14-01132

     Contrary to defendants’ contention on their appeal, the evidence
established that plaintiff was injured by an elevation related risk
within the scope of Labor Law § 240 (1). Although the feet of the
lower section of the ladder were at the same level as plaintiff and
the upper extendable section fell only a short distance, plaintiff is
not precluded from recovery under section 240 (1) (see Wilinski v 334
E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 6-7). Defendants’
contention that plaintiff should have inspected the ladder “amounts,
at most, to contributory negligence, a defense inapplicable to a Labor
Law § 240 (1) [cause of action]” (Nacewicz v Roman Catholic Church of
the Holy Cross, 105 AD3d 402, 403).

     We agree with defendants, however, that the court erred in
denying that part of their cross motion with respect to the Labor Law
§ 200 and common-law negligence causes of action, and we therefore
modify the order accordingly. “It is settled law that where the
alleged defect or dangerous condition arises from the contractor’s
methods and the owner exercises no supervisory control over the
operation, no liability attaches to the owner under the common law or
under section 200 of the Labor Law” (Lombardi v Stout, 80 NY2d 290,
295; see Gielow v Rosa Coplon Home, 251 AD2d 970, 972, lv dismissed in
part and denied in part 92 NY2d 1042, rearg denied 93 NY2d 889).
Here, defendants met their initial burden by establishing that
plaintiff’s accident resulted from the manner in which the work was
performed, not from any dangerous condition on the premises, and
defendants exercised no supervisory control over the work (see
Leathers v Zaepfel Dev. Co., Inc. [appeal No. 2], 121 AD3d 1500,
1503). Plaintiff failed to raise an issue of fact to defeat that part
of the cross motion (see generally Zuckerman v City of New York, 49
NY2d 557, 562).

     We conclude with respect to plaintiff’s cross appeal that the
court properly granted that part of defendants’ cross motion for
summary judgment dismissing the Labor Law § 241 (6) cause of action
insofar as it is based on the alleged violation of 12 NYCRR 23-1.21
(b) (3) (iv). Pursuant to that regulation, “[a] ladder shall not be
used . . . [i]f it has any flaw or defect of material that may cause
ladder failure.” Here, we conclude that the icing of the automatic
positive acting locks is not a flaw or defect of material within the
meaning of the regulation. We agree with plaintiff, however, that the
court erred in granting defendants’ cross motion with respect to the
section 241 (6) cause of action insofar as it is based on the alleged
violation of 12 NYCRR 23-1.21 (d) (2), and we therefore further modify
the order accordingly. That regulation requires that “[e]ach upper
section of any extension ladder when extended shall be locked in place
by two automatic positive acting locks” and, here, contrary to
defendants’ contention, they failed to establish that the regulation
is inapplicable to the facts of this case (see generally Rizzuto v
L.A. Wenger Contr. Co., 91 NY2d 343, 351; Forschner v Jucca Co., 63
AD3d 996, 998).

     Lastly, plaintiff’s contention that he should be granted partial
summary judgment on the Labor Law § 241 (6) cause of action insofar as
it is based on the alleged violation of 12 NYCRR 23-1.21 (d) (2) was
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                                                         CA 14-01132

raised for the first time in his reply papers and thus is not properly
before us (see Turner v Canale, 15 AD3d 960, 961, lv denied 5 NY3d
702).




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
