Thorpe v. One Page Park, LLC

208 A.D.3d 818

174 N.Y.S.3d 430

Lorenzo THORPE, appellant,

v.ONE PAGE PARK, LLC, et al., respondents.

2020–00497

Index No. 381/17

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

Submitted—April 19, 2022

August 24, 2022

Arkady Frekhtman, Brooklyn, NY, for appellant.

Gallo Vitucci Klar, LLP, New York, NY (Jeffrey L. Richman of counsel), for respondents.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, JOSEPH J. MALTESE, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Maria S. Vazquez–Doles, J.), dated January 6, 2020. The order, insofar as appealed from, in effect, upon reargument, adhered to a prior determination in an order of the same court dated August 28, 2019, granting that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant One Page Park, LLC, and denying that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against the defendant One Page Park, LLC.

ORDERED that the order dated January 6, 2020, is modified, on the law, by deleting the provision thereof, in effect, upon reargument, adhering to the determination in the order dated August 28, 2019, granting that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant One Page Park, LLC, and substituting therefor a provision, upon reargument, vacating that determination in the order dated August 28, 2019, and thereupon, denying that branch of the motion; as so modified, the order dated January 6, 2020, is affirmed insofar as appealed from, without costs or disbursements.

On July 8, 2016, the plaintiff allegedly was injured in the course of his employment at a construction site. The defendant One Page Park, LLC (hereinafter Page), was the owner of the property and contracted the defendant A–W Coon & Sons, Inc. (hereinafter Coon), to perform excavation work on the site, among other things. The plaintiff, an employee of a nonparty temporary staffing agency, reported to work for Coon and was working on the site when, in the course of installing stakes and caution tape around an open pit, the ground beneath his foot gave way, and he fell into the pit, allegedly sustaining injuries. According to the plaintiff, the pit was 14 to 16 feet deep.

The plaintiff commenced this personal injury action against Page and Coon, asserting causes of action alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The defendants moved for summary judgment dismissing the complaint. The plaintiff cross-moved, inter alia, for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6). In an order dated August 28, 2019, the Supreme Court granted the defendants’ motion and denied the plaintiff's cross motion.

On August 29, 2019, the plaintiff filed a notice of appeal from the order dated August 28, 2019. On March 2, 2020, the plaintiff's appeal from that order was deemed dismissed pursuant to 22 NYCRR 1250.10(a) for failure to prosecute.

In the meantime, in September 2019, the plaintiff moved, inter alia, for leave to reargue his opposition to that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against Page and that branch of his cross motion which was for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against Page. In an order dated January 6, 2020, the Supreme Court, inter alia, in effect, upon reargument, adhered to the determination in the order dated August 28, 2019, granting that branch of the defendants’ motion and denying that branch of the plaintiff's cross motion. The plaintiff appeals from the order dated January 6, 2020.

"As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, although we have the inherent jurisdiction to do so" ( PennyMac Corp. v. Nicolosi, 185 A.D.3d 711, 712, 124 N.Y.S.3d 856, citing Faricelli v. TSS Seedman's, Inc., 94 N.Y.2d 772, 774, 698 N.Y.S.2d 588, 720 N.E.2d 864 ; see Bray v. Cox, 38 N.Y.2d 350, 353, 379 N.Y.S.2d 803, 342 N.E.2d 575 ). Since the plaintiff appealed from an order superseding the prior order appealed from at a time before the prior appeal was deemed dismissed, we exercise that discretion here.

" Labor Law § 240(1) imposes upon owners, contractors, and their agents a nondelegable duty to provide workers proper protection from elevation-related hazards" ( Zoto v. 259 W. 10th, LLC, 189 A.D.3d 1523, 1524, 134 N.Y.S.3d 728, citing Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 500, 601 N.Y.S.2d 49, 618 N.E.2d 82 ). Section 240(1) protects workers from the "pronounced risks arising from construction work site elevation differentials" ( Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865 ; see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d at 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 ). "The protections of the statute are implicated where a worker's ‘task creates an elevation-related risk of the kind that the safety devices listed in section 240(1) protect against’ " ( Zoto v. 259 W. 10th, LLC, 189 A.D.3d at 1524, 134 N.Y.S.3d 728, quoting Broggy v. Rockefeller Group, Inc., 8 N.Y.3d 675, 681, 839 N.Y.S.2d 714, 870 N.E.2d 1144 ). "Liability is contingent upon ‘the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein’ " ( Zoto v. 259 W. 10th, LLC, 189 A.D.3d at 1524, 134 N.Y.S.3d 728, quoting Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085 ; see Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 97, 7 N.Y.S.3d 263, 30 N.E.3d 154 ). To recover under section 240(1), the plaintiff must demonstrate that a violation of section 240(1) proximately caused his or her injury (see Barreto v. Metropolitan Transp. Auth., 25 N.Y.3d 426, 433, 13 N.Y.S.3d 305, 34 N.E.3d 815 ; Zoto v. 259 W. 10th, LLC, 189 A.D.3d at 1524, 134 N.Y.S.3d 728 ). There can be no liability where a plaintiff's own actions are the sole proximate cause of the accident (see Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39, 790 N.Y.S.2d 74, 823 N.E.2d 439 ; Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 ; Zoto v. 259 W. 10th, LLC, 189 A.D.3d at 1524, 134 N.Y.S.3d 728 ).

Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) cause of action insofar as asserted against Page....