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

1382
CA 12-00986
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


DAVID E. KUNTZ, SR., PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

WNYG HOUSING DEVELOPMENT FUND COMPANY INC.
AND WNY GROUP L.P., DEFENDANTS-RESPONDENTS.
--------------------------------------------
WNYG HOUSING DEVELOPMENT FUND COMPANY INC.,
AND WNY GROUP L.P., THIRD-PARTY
PLAINTIFFS-RESPONDENTS,

                    V

CATENARY CONSTRUCTION CORP., THIRD-PARTY
DEFENDANT-RESPONDENT.


MODICA & ASSOCIATES, ATTORNEYS, PLLC, ROCHESTER (STEVEN V. MODICA OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

THE LAW FIRM OF JANICE M. IATI, P.C., ROCHESTER (JANICE M. IATI OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS AND THIRD-PARTY PLAINTIFFS-
RESPONDENTS.

LAW OFFICE OF LAURIE G. OGDEN, ROCHESTER (GARY J. O’DONNELL OF
COUNSEL), FOR THIRD-PARTY DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (David
Michael Barry, J.), entered February 24, 2012. The order, insofar as
appealed from, denied plaintiff’s motion for partial summary judgment.

     It is hereby ORDERED that the order so appealed from is affirmed
without costs.

     Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action seeking damages for injuries he sustained when he
fell from a scaffold at a construction site owned by defendants-third-
party plaintiffs (defendants). The accident occurred while plaintiff
was attempting to attach an outrigger to the scaffold. As he reached
over the side of the scaffold to attach the outrigger, plaintiff fell
from the scaffold and landed on the ground some 30 feet below,
sustaining a broken femur, among other injuries. Following discovery,
plaintiff moved for partial summary judgment on liability on his Labor
Law § 240 (1) cause of action, and defendants cross-moved for summary
judgment dismissing that claim. Supreme Court denied the motion and
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                                                         CA 12-00986

cross motion, and plaintiff appeals.   We now affirm.

     To establish a violation of Labor Law § 240 (1), a plaintiff must
show not only that he fell at a construction site, but also that he or
she did so because of the absence or inadequacy of a safety device
(see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 288-
289; Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267; Felker v
Corning Inc., 90 NY2d 219, 224; see generally Ortiz v Varsity
Holdings, LLC, 18 NY3d 335, 340). Here, plaintiff contends that he is
entitled to judgment on liability under Labor Law § 240 (1) as a
matter of law because defendants failed to provide him with adequate
safety devices that could have prevented his fall, namely, a safety
belt and lanyard. Plaintiff further contends that it is irrelevant
whether a wood safety railing and cross braces were present on the
scaffold when he fell because those items are not safety devices and,
in any event, they would not have prevented him from falling even if
they were in place.

     We agree with defendants, however, that the scaffold itself and
the safety railing and cross braces on it constitute safety devices,
and that the evidence submitted by plaintiff raises an issue of fact
whether the safety devices provided by defendants afforded him proper
protection, or whether additional devices were necessary (see
generally Brown v Concord Nurseries, Inc., 37 AD3d 1076, 1077). The
evidence submitted by plaintiff also raises an issue of fact whether
he intentionally removed the safety railing and cross braces from the
scaffold and whether such conduct by plaintiff was the sole proximate
cause of his injuries (see generally Grove v Cornell Univ., 17 NY3d
875, 877; Lovall v Graves Bros., Inc., 63 AD3d 1528, 1530). Although
plaintiff asserts that he could not have attached the outrigger in the
manner suggested by defendants, there was evidence to the contrary,
including the testimony of a worker at the site who claimed to have
seen plaintiff install outriggers in that manner approximately 50
times before the accident (see Traver v Valente Homes, Inc., 20 AD3d
856, 857-858). In any event, the evidence submitted by defendants in
opposition to the motion raises triable issues of fact to defeat the
motion, “i.e., ‘there is a plausible view of the evidence—enough to
raise a fact question—that there was no statutory violation and that
plaintiff’s own acts or omissions were the sole cause of the
accident’ ” (Miller v Spall Dev. Corp., 45 AD3d 1297, 1298, quoting
Blake, 1 NY3d at 289 n 8).

     Finally, even assuming, arguendo, that the court should have
considered the demonstrative evidence submitted by plaintiff in reply,
we conclude that the error is harmless because that evidence would not
have changed the outcome of plaintiff’s motion (see generally Matter
of Chautauqua County Dept. of Social Servs. v Rita M.S., 94 AD3d 1509,
1514).

     All concur except WHALEN, J., who dissents and votes to reverse
the order insofar as appealed from in accordance with the following
Memorandum: Respectfully, I disagree with the majority that
plaintiff’s motion for partial summary judgment on liability on the
Labor Law § 240 (1) cause of action was properly denied. I therefore
                                 -3-                          1382
                                                         CA 12-00986

dissent, and would grant plaintiff’s motion. Plaintiff was at risk of
falling in two distinct ways here. First, he was at risk of falling
off the scaffold while he assisted the masons and performed his
general work duties. Second, he was at risk of falling from the
specific task of placing the outriggers. While the wooden safety
railing and cross braces may have been adequate to protect plaintiff
during his general work duties, they were not adequate to protect him
from the risks associated with installing the outriggers, especially
given the placement of the pallet in his work area. There is an issue
of fact whether the cross braces and wooden railing were in place when
plaintiff fell. However, even if they were then in place, we note
that plaintiff testified at his deposition that he was working below
the railing height when installing the outriggers. Plaintiff
testified that he would not have fallen while installing the
outriggers had he been given a safety net, safety harness or at least
a belt with a lanyard.

     The Court of Appeals’ analysis in Felker v Corning Inc. (90 NY2d
219) is instructive here. There, the Court wrote that the injured
plaintiff was exposed to two distinct elevation-related risks
associated with the painting task he was directed to perform. The
first was having to paint at an elevated height over eight feet off
the ground, and the Court determined that a stepladder was adequate as
a safety device for the injured plaintiff with respect to this risk
(id. at 224). The Court then wrote that a second risk was created
when the injured plaintiff was required to reach over an eight-foot
alcove wall and work over an elevated, open area. The Court held that
it was the contractor’s complete failure to provide any safety device
to the injured plaintiff to protect him from this second risk of
falling over the alcove wall that led to liability under Labor Law §
240 (1).

     As previously stated, in the present case before this Court
plaintiff was also exposed to two distinct elevation-related risks.
The first was his general work assisting the masons on the scaffold
and carrying supplies. The second risk was the specific task of
leaning out over the scaffold to install the outriggers. It is
undisputed that a pallet was placed in plaintiff’s work area which
forced him to install the outriggers in an awkward manner. It is also
undisputed he was not provided a harness or lanyard to protect him
from the risk of leaning out over the scaffold to install the
outriggers. Plaintiff was not provided with a safety device to
protect him from the risk of falling from the scaffolding to the
ground and thus was entitled to partial summary judgment on liability
on his Labor Law § 240 (1) cause of action (see Yost v Quartararo, 64
AD3d 1073, 1074-1075).

     I also respectfully disagree with the majority that an issue of
fact exists whether plaintiff’s conduct was the sole proximate cause
of his injuries because he may have removed the railing and cross
braces. Whether or not the railing and/or cross braces were there
when plaintiff fell is irrelevant because plaintiff could not use them
as safety devices due to the location of the pallet. Plaintiff’s
conduct cannot possibly be found to be the sole proximate cause of
                                 -4-                          1382
                                                         CA 12-00986

this accident because he did not place the pallet in his work area,
and the pallet caused him to be in a precarious position while
attempting to install the outrigger.




Entered:   March 22, 2013                       Frances E. Cafarell
                                                Clerk of the Court
