Liu v. Whitestar Consulting & Contracting, Inc.

219 A.D.3d 1249

196 N.Y.S.3d 435

Noah LIU et al., Plaintiffs–Appellants,

v.WHITESTAR CONSULTING & CONTRACTING, INC., Defendant–Respondent,Safon LLC, et al., Defendants.

Whitestar Consulting & Contracting, Inc., Third–Party Plaintiff–Respondent,

v.JT Construction & Management Inc., Third–Party Defendant.

[And a Second Third-Party Action]

643

Index No. 452625/15

Case No. 2022–05774

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

Entered: September 28, 2023

William Schwitzer & Associates, P.C., New York (Christopher W. Drake of counsel), for appellants.

Cascone & Kluepfel, LLP, Farmingdale (Kyle R. Silverstein and Howard B. Altman of counsel), for respondent.

Webber, J.P., Friedman, Gonza´lez, Rodriguez, Pitt–Burke, JJ.

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered September 15, 2022, which, to the extent appealed from, granted the motion of defendants Safon LLC, Safon LLC doing business as The Moinian Group, Josephson LLC doing business as The Moinian Group (collectively, Moinian), Newmark & Co. Real Estate Inc. doing business as Newmark Grubb Knight Frank (collectively, Newmark) dismissing plaintiffs’ claims as against them under Labor Law § 240(1), Labor Law § 200, and common-law negligence; granted defendant Whitestar Consulting & Contracting, Inc.’s motion to dismiss plaintiffs’ claim as against it under Labor Law § 240(1) ; and denied so much of plaintiffs’ cross-motion seeking summary judgment on their Labor Law §§ 240(1) and 200 and common-law negligence claims against defendants, unanimously modified, on the law, to deny Moinian's, Newmark's and Whitestar's motions to dismiss plaintiffs’ Labor Law § 240(1) claim and grant plaintiffs’ cross-motion for summary judgment as to liability on that claim as against Moinian, Newmark, and Whitestar, and otherwise affirmed, without costs.

Injured plaintiff Noah Liu was working at defendants’ construction site when he fell 20 to 25 feet down an unguarded temporary plywood ramp that had been constructed over one of the building's staircases so that workers could move materials.

Plaintiffs established prima facie that they were entitled to summary judgment on their Labor Law § 240(1) claim by submitting evidence that the ramp was a device being used for the construction work, spanned a significant height differential, and did not have any safety devices to prevent workers from inadvertently falling off it (see Hoyos v. NY–1095 Avenue of the Americans, LLC, 156 A.D.3d 491, 493, 67 N.Y.S.3d 597 [1st Dept. 2017] ; Serpe v. Eyris Prods., 243 A.D.2d 375, 377, 663 N.Y.S.2d 542 [1st Dept. 1997] ). These facts are sufficient to conclude that Labor Law § 240(1) applies to the injured plaintiff's accident (see e.g. Valente v. Lend Lease [US] Constr. LMB, Inc., 29 N.Y.3d 1104, 1105, 60 N.Y.S.3d 107, 82 N.E.3d 448 [2017] ; Royland v. McGovern & Co., LLC, 203 A.D.3d 677, 679, 167 N.Y.S.3d 1 [1st Dept. 2022] ). In opposition, defendants proffered no evidence sufficient to raise a triable issue of fact.

That the ramp was not intended to be used as a substitute for a ladder or scaffold, but rather was used to transport materials, is of no moment. Whether an accident involving a ramp is encompassed by Labor Law § 240(1) turns on a number of factors, the primary one being whether the ramp covered a significant elevation differential (compare Latteri v. Port of Auth. of New York & New Jersey, 205 A.D.3d 546, 546, 166 N.Y.S.3d 529 [1st Dept. 2022] [internal sloped ramp the plaintiff used...