Berman v Franchised Distribs., Inc NY Slip Op 32109(U) August 9, 2010 Sup Ct, Suffolk County Docket Number: Judge: Jeffrey Arlen

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1 Berman v Franchised Distribs., Inc NY Slip Op 32109(U) August 9, 2010 Sup Ct, Suffolk County Docket Number: Judge: Jeffrey Arlen Spinner Republished from New York State Unified Court System's E-Courts Service. Search E-Courts ( for any additional information on this case. This opinion is uncorrected and not selected for official publication.

2 [* 1] SHORT FORM OKDTR INDEX NO CAL. No OT PRESENT: SUPREME COURT - STATE OF NEW YORK I.A.S. PART 21 - SUFFOLK COUNTY Hon. JEFFREY ARLEN SPINNER Justice of the Supreme Court MOTION DATE (#003) MOTION DATE (#004) ADJ. DATE Mot. Seq. # MD Mot. Seq. # MotD JEFFREY BERMAN and SALLY BERMAN, - against - Plaintiffs, FRANCHISED DISTRIBUTORS, INC., and SALVATORE BELLAVIA, X Defendants. : X PICCIANO & SCAHILL, P.C. Attorney for Plaintiffs 900 Merchants Concourse, Suite 3 10 Westbury, New York FRIEDMAN HARFENIS KRAUT & PERLSTEIN LLP Attorney for Defendants 3000 Marcus Avenue, Suite 2E1 Lake Success, New York Upon the following papers numbered 1 to 40 read on these motions for summaryjudgment; Notice of Motion/Order to Show Cause and supporting papers 1-13 ; Notice of Cross Motion and supporting papers ; Answering Affidavits and supporting papers ; ; Replying Affidavits and supporting papers ; Other memorandaof - emotim$ it is, law; ( further ORDERED that these motions are consolidated for the purpose of this determination, and it is ORDERED that the plaintiffs motion for an order pursuant to CPLR 3212 granting summary judgment in his favor as to the defendants liability pursuant to Labor Law (l), is denied; and it is further ORDERED that the defendants motion for an order pursuant to CPLR granting summary judgment dismissing the complaint is granted to the extent that the plaintiff s Labor Law and common-law negligence claims, as well as the plaintiffs Labor Law (6) claim based upon the defendants alleged violation of 12 NYCRR (b) (4) (ii), and (e) (2), are dismissed, and is otherwise denied.

3 [* 2] Berman v Franchised Distributors, Inc. Page No. 2 The plaintiff Jeffrey Berman commenced this action to recover damages pursuant to Labor Law $9 240 (l), 241 (6), and 200, and common-law negligence, for injuries he allegedly sustained in a fall from a ladder while working at the defendants property. By stipulation filed with the Court on December 8, 2008, Sally Berman discontinued her derivative claims. The plaintiff testified at his deposition that he was a self-employed painter with over 30 years of experience. On the day of his accident, he had worked on a different job during the day and arrived at the defendants property at approximately 5:30 p.m. to power wash the exterior of the building, in preparation for painting. He testified that he was using his relatively new 12 foot A-frame ladder, that there was nothing wrong with the ladder, and that it was his usual custom to use an A-frame ladder (as opposed to an extension ladder leaning up against the building) when power washing. He placed the ladder next to the wall, with the rungs perpendicular to the wall, so that he could get close enough to properly power wash. One side of the ladder frame rested on pavement and one side rested on grass, and the plaintiff tested the ladder before using it, to make sure it was secure. He had been power washing for approximately 20 minutes and had moved the ladder once before his accident. According to his testimony, he was finished with this particular section of the wall and was descending the ladder from the eighth rung, to the sixth or seventh rung, when he felt the ladder tilt in one direction and, although he leaned his body in the opposite direction, he was unable to balance the ladder and he fell. He surmised that the ground had gotten wet from the power washing, causing one or more of the ladder footings to sink into the grass and the ladder to tilt. The defendants do not dispute that the plaintiff was hired to paint the building or that he fell. The gravamen of their argument in favor of dismissal is that the plaintiff was the sole proximate cause of his accident. based upon the affidavit and deposition testimony of nonparty David Goddard, who knew the plaintiff and was working next door to the power washing endeavor. According to Goddard, he spoke with the plaintiff not long before the accident, although he was not at the site at the time of the fall. He testified that he and the plaintiff had a casual relationship, that he drank beer with the plaintiff on prior occasions, and that the plaintiff had a cooler with beer, and offered him a beer, on the day of the accident. Goddard also testified that he saw the plaintiff set up his ladder, that the plaintiff appeared to be intoxicated, that he commented to the plaintiff about his intoxication, and that he was concerned about his safety. The defendants also submitted a copy of a page of the plaintiffs hospital record from the day of the accident which appears to reflect that the plaintiff was suffering from alcohol withdrawal (see generalljl, Bucklej) v J.A. Jones/GMO, 38 AD3d 461, 832 NYS2d ; Eitner v 119 W. 71 St. Owners Corp., 253 AD2d 641, 677 NYS2d 555 [1998]). According to the plaintiffs deposition testimony, he did not drink any alcohol on the day of his accident. Labor Law (1) requires that safety devices be so constructed, placed and operated as to give proper protection to a worker (Klein v City of New York, 89 NY2d 833, 834, 652 NYS2d 723 Goddard further testitied that he observed the plaintiff setting up an extension laddet- which extended to the roof. This contradicts the plaintiffs testimony that he was working on a 12-foot A-frame ladder. Also inconsistent is the copy of the police report which indicates that the plaintiff fell from a ladder attached to the building (see geneua/(v, Eitiier v 119 W. 71 St. 0witer.r Corp.,.siiprq see also, Phillips v Kantor & Co., 3 1 NY2d 307,338 NYS2d 882 [ 19721).

4 [* 3] Berman v Franchised Distributors, Inc. Page No. 3 [1996]). The legislative purpose behind section 24Cl (1) is to protect workers by placing the ultimate responsibility for safety practices where such resporisibility belongs, on the owner and contractor instead of on workers, who are scarcely in a position to protect themselves from accident (Rocoviclz v ConsolidatedEdison Co., 78 NY2d 509, 514, 577 NYS2d ). However, in order to prevail upon a claim pursuant to Labor Law (l), a plaintiff must establish that the statute was violated and that this violation was a proximate cause of his injuries (Bland v Manoclterian, 66 NY2d 452, 497 NYS2d ; Sprague v Pecklzam Materinls Corp., 240 AD2d 392, 658 NYS2d 97 [1997]). While an injured plaintiffs contributory negligence will not exonerate a defendant who has violated Q 240 (1) (Rayuet v Braun, 90 NY2d 177, 184,659 NYS2d 237 [1997]; Prodbielski v KMO-361 Realty Assoc., 294 AD2d 552,742 NYS2d 664, Iv denied 98 NY2d 613,749 NYS2d 475 [2002]; Sergeant v Murphy Family Trust, 284 AD2d 991, 726 NYS2d 537 [2001]), a defendant is not liable under $240 (1) where there is no evidence of a violation and the proof reveals that the plaintiffs own negligence was the sole proximate cause ofthe accident (Robinson v East Med. Ctr., 6 NY3d 550, 814 NYS2d 589 [2006]; Montgomery v Federal Express Corp., 4 NY3d 805 [2005]). It is well settled that on a motion for summary judgment, the movant has the initial burden of setting forth evidentiary facts sufficient to establish his entitlement to judgment as a matter of law (Zuckerman v City of New York, 49 NY2d 557,427 NYS2d 595 [1980]; Fabbricrrtore v Lindenhurst Union Free School Dist., 259 AD2d 659, 686 NYS2d 822 [1999]). Moreover, it is not the Court s function to resolve issues of credibility on motions for summary judgment (Ferrante v American Lung Assn., 90 NY2d 623, 631, 665 NYS2d 25 [ 19971). Here, the plaintiff failed to establish, prima facie, that the ladder did not provide him with proper protection or that his actions were not the sole proximate cause of his injuries (see, Grove v Cornell Univ., AD3d 2010 NY Slip Op 5845 [2010]; Herrnsdorfv Bernard Janowitz Constr. Corp., 61AD3d 6.10: 889 NYS2d 600 [2009]; see also, Bondanella v Rosenfeld, 298 AD2d 941, 747 NYSZd 645 [2002]). Accordingly, the plaintiffs motion for summary judgment is denied. Since there remains issue of fact as to the happening of the accident and whether the plaintiff was the sole proximate cause of same, so much of the defendants motion which seeks to dismiss his Labor Law 240 (1) claim is also denied. Labor Law tj 24 1 (6) requires owners and general contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. As is the duty imposed by Labor Law $ 240 (l), the duty to comply with the Commissioner s regulations imposed by (6) is nondelegable (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra; Long v Forest-Feltlliaber, 55 NY2d 154, 448 NYS2d 132 [1982]; Allen v Cloutier Constr. Corp., 44 NY2d 290, 405 NYS2d 630 [1978]). Therefore, a plaintiff who asserts a viable claim under tj 24 1 (6) wherein the rule or regulation alleged to have been breached is a specific positive command and not merely general safety standards need not show that defendants exercised supervision or control over the work site or had actual or constructive notice in order to establish a right of recovery (see, Ross v Curtis-Palmer Hydro-Eke. Co,,.supra; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343,670 NYS2d ). In opposition to the defendants motion, the plaintiff relies upon the alleged violatioiis of the Industrial Code at 12 NYCRR (b) (4), (ii> and (iv), and (e) (2) and (3). Section entitled Ladders and Ladderways, provides, in relevant part:

5 [* 4] Berman v Franchised Distributors, Inc. Page No. 4 (b) General requirements for ladders. (4) Installation and use. * * * * * * (ii) All ladder footings shall be firm. Slippery surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings. * * * (iv) When work is being performed from ladder rungs between six and 10 feet above the ladder footing, a 1eani:ng ladder shall be held in place by a person stationed at the foot of such ladder unless the upper end of such ladder is secured against side slip by its position or by mechanical means. Here, the plaintiff testified that he was using an A-fi-ame ladder, which was free-standing and not leaning against the building wall. Therefore, subsection (iv) is inapplicable, As to subsection (ii), the plaintiff asserts that the ground under the ladder footings became unstable when saturated with water from the power washing and the defendants have not established, as a matter of law, that this subsection is inapplicable. Section (e) entitled Stepladders, provides, in relevant part: (2) Bracing. Such bracing as may be necessary for rigidity shall be provided for every stepladder. When in use every stepladder shall be opened to its full position and the spreader shall be locked. (3) Stepladder footing. Standing stepladders shall be used only on firm, level footings. When work is being performed from a step of a stepladder 10 feet or more above the footing, such stepladder shall be steadied by a person stationed at the foot of the stepladder or such stepladder shall be secured against sway by mechanical means. Here, there is no allegation that the ladder failed because it was not sufficiently rigid or not fully opened or locked. Therefore, subsection (2) is inapplicable Nor is there any allegation that the work was being performed 10 feet or more from the footings. Therefore, the requirement of subsection (3) that the ladder have a person stationed at the foot is also inapplicable. However, the defendants have not established that the requirement that footings be firrn and level is inapplicable, as a matter of law, subject to any claims of the plaintiffs comparative negligence (see generally, Misicki v Caradonna, 12 NY3d 51 1, 515, 882 NYS2d 375 [2009]; Riffo-Velozo v Village of Scnrsdale, 68 AD3d 839, 891 NYS2d 416 [2009]). Accordingly, so much of the defendants, motion which seeks summary judgment dismissing the plaintiffs Labor Law cj 241 (6) claim is denied as to the alleged violation of 12 NYCRR (b) (4) (iv) and (e) (3), but only as they relate to the ladder s placement on firm, level footings,

6 [* 5] Bernian v Franchised Distributors, Inc. PageNo. 5 and is otherwise granted. The protection provided by Labor Law Q 200 codifies the common-law duty of an owner or contractor to provide employees with a safe place to work (Jock v Fien, 80 NY2d 965, 590 NYS2d 878 [ 19921). It applies to owners and contractors (see, Russin v Piccinno & Son, 54 NY2d 3 1 1, 3 18, 445 NYS2d 127 [ ) who exercised control or supervision over the work and either created an allegedly dangerous condition or had actual or constructive notice of it (Lombnri v Stout, 80 NY2d 290, 590 NYS2d ; Yong Ju Kim v Herbert Constr. Co., 275 AD2d 709,713 NYS2d 190 [2000]). Where, as here, the alleged dangerous condition arises from the method or material controlled by the injured plaintiff and the owner and contractor exerc (sed no supervision or control over the plaintiffs work, no liability attaches under the common law or Labor Law Q 200 (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877, 609 NYS2d 168 [ 19931). Moreover, the plaintiff did not oppose dismissal of these claims. Accordingly, the defendan plaintiffs Labor Law Q 200 and common-law negligence clai FINAL DISPOSITION -