Fuentes v. 257 Toppings Path

207 N.Y.S.3d 582

225 A.D.3d 746

Gregorio FUENTES, et al., appellants-respondents,

v.257 TOPPINGS PATH, LLC, et al., defendants third-party plaintiffs-respondents-appellants,Builder Services Group, Inc., etc., third-party defendant-respondent.

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 19, 2023

March 20, 2024

Oresky & Associates, PLLC, Bronx, NY (Joshua E. Goldblatt of counsel), for appellants-respondents.

Gallo Vitucci Klar LLP, New York, NY (C. Briggs Johnson of counsel), for defendants third-party plaintiffs-respondents-appellants.

Ansa Assuncao, LLP, White Plains, NY (Stephen P. McLaughlin of counsel), for third-party defendant-respondent.

ANGELA G. IANNACCI, J.P., LARA J. GENOVESI, HELEN VOUTSINAS, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, and the defendants third-party plaintiffs cross-appeal, from an order of the Supreme Court, Nassau County (Christopher G. Quinn, J.), entered June 21, 2021. The order, insofar as appealed from, denied the plaintiffs’ motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on a violation of 12 NYCRR 23–1.7(b)(1). The cross-appeal was deemed dismissed pursuant to 22 NYCRR 1250.10(a).

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and the plaintiffs’ motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on a violation of 12 NYCRR 23–1.7(b)(1) is granted.

The plaintiff Gregorio Fuentes (hereinafter the injured plaintiff) was employed as a laborer by the third-party defendant, Builder Services Group, Inc. (hereinafter the third-party defendant), to work on the new construction of a house on land owned by the defendant third-party plaintiff 257 Toppings Path, LLC (hereinafter 257 Toppings). The defendant third-party plaintiff A–H Construction, LLC (hereinafter A–H), was the general contractor on the project. During the course of construction, the injured plaintiff was spray-painting insulation in the attic space when he fell through an opening in the attic floor. The injured plaintiff fell 16 feet, landing on the level below. The opening was intended to be covered by a panel that would provide access to the attic upon completion of construction.

The injured plaintiff, and his wife suing derivatively, thereafter commenced the instant action against 257 Toppings and A–H (hereinafter together the defendants) to recover damages for personal injuries, alleging, inter alia, violations of Labor Law §§ 240(1) and 241(6). The defendants commenced a third-party action against the third-party defendant. After the note of issue was filed, the plaintiffs moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on a violation of 12 NYCRR § 23–1.7(b)(1). The defendants and the third-party defendant, among other things, separately opposed the motion. By order entered June 21, 2021, the Supreme Court, inter alia, denied the plaintiffs’ motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on a violation of 12 NYCRR 23–1.7(b)(1). The plaintiffs appeal.

[1–3] Labor Law § 240(1) imposes upon owners, contractors, and their agents a nondelegable duty to provide workers proper protection from elevation-related hazards (see McCarthy v. Turner Const., Inc., 17 N.Y.3d 369, 374, 929 N.Y.S.2d 556, 953 N.E.2d 794; Mushkudiani v. Racanelli Constr. Group, Inc., 219 A.D.3d 613, 194 N.Y.S.3d 149). "The purpose of the statute is to protect workers from the ‘pronounced risks arising from construction work site elevation differentials’ " (Zoto v. 259 W. 10th, LLC, 189 A.D.3d 1523, 1524, 134 N.Y.S.3d 728, quoting Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865). "To prevail on a Labor Law § 240(1) cause of action, a plaintiff must establish that the statute was violated and that the violation proximately caused his or her injuries" (Orellana v. 7 W. 34th St., LLC, 173 A.D.3d 886, 887, 103 N.Y.S.3d 496; see Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550, 554, 814 N.Y.S.2d 589, 847 N.E.2d 1162).

[4] Here, the plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law on the issue of liability on the Labor Law § 240(1) cause of action. The plaintiffs’ evidence established that the injured plaintiff was exposed to an elevation risk within the ambit of Labor Law § 240(1) by virtue of the uncovered, unguarded opening in the attic floor (see Zoto v. 259 W. 10th, LLC, 189 A.D.3d at 1524, 134 N.Y.S.3d 728), that he was not provided with any safety devices to protect him from that hazard, and that the failure to provide him proper protection from the uncovered, unguarded opening was a proximate cause of his injuries (see Mushkudiani v. Racanelli Constr. Group, Inc., 219 A.D.3d 613, 194 N.Y.S.3d 149; Rodriguez v. Waterfront Plaza, LLC, 207 A.D.3d 489, 490, 172 N.Y.S.3d 38; Mejia v. 69 Mamaroneck Rd. Corp., 203 A.D.3d 815, 164 N.Y.S.3d 207; Norero v. 99–105 Third Ave. Realty, LLC, 96 A.D.3d 727, 728, 945 N.Y.S.2d 720).

In opposition, the defendants and the third-party defendant failed to raise a triable issue of fact. While the plaintiff testified that his visibility was poor due to the condition of a protective mask that he was wearing at the time of the accident, any potential comparative negligence arising from this fact would not be a defense to the Labor Law § 240(1) cause of action (see Mushkudiani v. Racanelli Constr. Group, Inc., 219 A.D.3d 613, 194 N.Y.S.3d 149; Zong Wang Yang v. City of New York, 207 A.D.3d 791, 794, 173 N.Y.S.3d 36).

[5] Labor Law § 241(6) requires that construction sites be conducted so "as to provide reasonable and adequate protection and safety to persons employed therein" (Nucci v. County of Suffolk, 204 A.D.3d 817, 819, 166 N.Y.S.3d 672 [internal quotation marks omitted]). "To prevail on a cause of action alleging a violation of Labor Law § 241(6), a plaintiff must establish the violation of an Industrial Code provision that sets forth specific, applicable safety standards, and that his or her injuries were proximately caused by such Industrial Code violation" (Moscati v. Consolidated Edison Co. of N.Y., Inc., 168 A.D.3d 717, 718, 91 N.Y.S.3d 209; see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82). Here, the Labor Law § 241(6) cause of action is premised on a violation of 12 NYCRR 23–1.7(b)(1)(i), "which mandates that holes or ‘hazardous openings’ at construction sites ‘into which a person may step or fall’ be ‘guarded by a substantial cover fastened in place or by [the installation of] a safety railing’ " (Ortiz v. 164 Atl. Ave., LLC, 77 A.D.3d 807, 809–810, 909 N.Y.S.2d 745, quoting 12 NYCRR 23–1.7[b][1][i]; see Mushkudiani v. Racanelli Constr. Group, Inc., 219 A.D.3d 613, 194 N.Y.S.3d...