VRETTOS v. THE STATE OF NEW YORK, #2007-030-522, Claim No. 108900, Motion No.
Claimant granted partial summary judgment based upon strict liability
provisions of Labor Law §240(1). As he and his supervisor lifted a heavy
window lintel while standing on an unsecured scaffold, the scaffold moved away
from the building, and claimant fell in the space between the building and the
scaffold almost 20 feet onto the cement landing at the bottom of an exterior
stairway. Claimant established without material contradiction that he was
engaged in the repair of a structure owned by the State of New York, as an
employee of a contractor hired by the State to perform an emergency repair,
that the repair work involved an elevation related risk, no safety equipment
other than an unsecured scaffold was supplied, the accident and resulting
injuries occurred because of an elevation related risk, and such injuries were
proximately caused by the failure to provide adequate safety equipment. The
fluid legal issue presented by the facts related to when it will be determined
as a matter of law that safety equipment was on-site, adequately explained and
offered, and perhaps refused. Claimant and immediate supervisor only witnesses
to accident. Defendant did not rebut the prima facie showing made by
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
KELNER & KELNER, ESQS.BY: GAIL S. KELNER, ESQ.
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: GWENDOLYN HATCHER, ASSISTANT ATTORNEY GENERAL
April 2, 2007
See also (multicaptioned
The following papers were read and considered on claimant’s motion for
judgment on the issue of liability:
1,2 Notice of Motion, Affirmation in Support by Gail S. Kelner, Esq., Attorney
for Claimant and accompanying exhibits
Affirmation in Opposition by Gwendolyn Hatcher, Assistant Attorney General and
Reply Affirmation by Gail S. Kelner, Esq. and attached exhibits
5,6 Filed Papers: Claim, Answer Vasilios Vrettos alleges in Claim number 108900
that on September 15, 2003
he was seriously
injured in a fall from a scaffold on which he was working as a laborer at a
construction site owned, operated, and controlled by the State of New York. In
the Claim, Defendant’s liability is premised upon alleged violations of
Labor Law §§200, 240, 240-a and 241(6). Issue was joined by service of
the Answer on March 11, 2004.
Claimant now moves for partial summary judgment based upon the strict liability
provisions of Labor Law §240(1).
On September 15, 2003 Mr. Vrettos was employed by Thoro Building Restoration,
Inc. (hereinafter Thoro), a company performing masonry and brick work pursuant
to a contract between Thoro and the State of New York at the Bernard Fineson
DDSO building at 84-45 Winchester Boulevard in Queens. The premises are also
referred to as Building 71. Claimant and his supervisor, Emmanuel Perdikakis,
were in the process of installing a lintel over the first story windows of
Building 71, working from a scaffold approximately 10 feet above ground level on
the right side, but 19 to 20 feet above the bottom landing of an exterior
stairway on the left side where claimant was working. Hung from the side of the
building, the scaffold did not contain a guardrail on the side closest to the
building, and was not anchored to the building in any fashion. It is alleged
that no safety harnesses or belts had been supplied.
Mr. Vrettos said no workers other than he and Mr. Perdikakis were there that
day. He assumed Mr. Perdikakis, had put the scaffolding up prior to that day,
and seemed to adjust it when claimant arrived with him in the morning.
Claimant’s job was to put up the “argo line” [Affirmation in
Support by Gail S. Kelner, Esq., Exhibit F, p. 23]. As they were lifting the
lintel - a two-man job - the scaffold moved away from the building, and claimant
fell in the space between the building and the scaffold onto the cement landing
at the bottom of the exterior stairway, sustaining serious injury.
Mr. Perdikakis indicates in his affidavit that he was employed as a
construction supervisor at the time of the accident by Thoro, and was aware that
the company had been awarded an emergency construction job at Building 71.
[Ibid. Exhibit G]. This was the second day on the job, as he recalled it,
and the first and only day claimant worked on the job. Mr. Perdikakis states
that there were no other workers at the job site that day. [Id.]
“. . . [The] job involved the removal, repair, restoration and replacement
of loose stones on the exterior of the building around the first and second
floor windows.” [Id.]. He confirms that it was he who set up the
scaffolding, and describes it as having
“. . . a metal platform . . . approximately 16 feet long by 2 feet wide,
. . . suspended from the roof on ropes just above the rear exterior staircase
leading from the first floor/ground level to the basement . . .[it] could then
be raised and lowered as necessary . . .
The scaffold was suspended so that it rested against the building. There was a
railing on the outside of the platform. There was no railing on the side of the
platform which rested against the building. The scaffold was not tied into the
building . . .
[Mr. Perdikakis] placed an extension ladder at ground level to get on and off
the scaffold when it was elevated at the 10 feet level above the ground . . .
When . . . [claimant and Mr. Perdikakis] arrived [at the job], the scaffold
was already erected from the day before
. . . [He] told Mr. Vrettos that we would be hanging the window lintel above the
first floor windows. The lintel was approximately 3 inches by 4 inches by 13
feet long, weighed approximately 150 pounds and was made of steel . . .
. . . [They] put the lintel on the scaffold. When . . . [they] were both on
the scaffold, we started to lift the lintel. Mr. Vrettos was on the left side
of the scaffold . . .
[They] did not have any safety belts or harnesses on the work site . . .
[They] started to lift the lintel . . . [Mr. Perdikakis] saw Mr. Vrettos using
both hands to lift and hold the lintel . . .
As Mr. Vrettos lifted the lintel, the scaffold suddenly swayed and he dropped
his end of the lintel. After he dropped his end, . . . [Mr. Perdikakis] could
not support . . . [his] end and it fell and hit the scaffold which moved away
from the building by 5-6 inches and the lintel fell off the scaffold through
this opening. . . .
After the lintel fell, Mr. Vrettos lost his balance and fell against the
building . . . [causing] the scaffold to move away from the building another 4
feet and Mr. Vrettos fell thorough (sic) this opening between the
scaffold and the building wall . . . ” [Id.].
Mr. Perdikakis opined that safety belts or a harness would have prevented Mr.
Samuel Mason, an area supervisor for Queens and the Bronx from the New York
State Office of General Services, (OGS) Design and Construction Division,
confirmed at his deposition that Building 71 was under the aegis of two state
agencies: the New York State Office of Mental Health and the New York State
Office of Mental Retardation and Developmental Disabilities. [Affirmation by
Gail S. Kelner, Esq., Exhibit B]. He indicated that there was a structural
emergency with regard to this building - located on the Creedmoor campus - and
that the work required to resolve the emergency repair was the removal and
replacement of brickwork “. . . in an area between the first floor window
and the second floor window on . . .” the side of what used to be a
two-story porch, now enclosed by brick. [Id. p. 38]. When the job was
awarded to Thoro, Mr. Mason met with personnel from the company, but did not
particularly remember with whom he met. Mr. Mason had no recollection of any
persons he may have met with from Thoro with respect to this job, had no idea
how many workers were on the job, and had no specific recollection of seeing
Thoro workers working from the scaffolding prior to the accident. He indicated
that he “believe[d]” that in a discussion of “safety
issues” during the original meeting with the contractor, that are recorded
in “minutes” and transmitted to a more centralized part of OGS,
there would be mention of the scaffolding, and the necessity of “. . .
protective barriers that no outsiders can get to it, the workers were in safety
harnesses and hardhats, whatever we feel the job calls for as far as safety is
concerned.” [Id. p. 32]. The contract closeout report confirms the
award of the contract and the nature of the work, and indicates that work
started on September 9, 2003, and was completed on September 16, 2003.
[Ibid. Exhibit C]. A final inspection is reported as occurring on
October 14, 2003. [Id.].
Although, significantly, Mr. Mason did not witness claimant’s accident,
and was not present at the site on that day before the accident occurred, he
prepared an accident report from the information supplied and identified
investigative reports prepared by the facility. [See ibid. Exhibit D]. A
photograph of the accident location, depicting the subject stairwell, and the
area on the building facade containing a brick-enclosed, two-story porch where
the repairs needed to be made, was also identified during Mr. Mason’s
deposition. [Ibid. Exhibit E]. He indicated that at some unspecified time
after the initial meeting with the contractor, after the bid was awarded, he
recalled going with somebody to the building site to further describe the work
to be done.
“. . . [H]ook type scaffolding that’s hooked from the roofing [was
used] . . . [with a] platform [that] is lowered down by ropes . . .
manually.” [Id. p. 38]. Mr. Mason confirmed that the
scaffolding hung immediately above the stairwell. Mr. Mason indicated that in
terms of his responsibility for the hanging of the scaffold, it would be to
determine “. . . that it was secured and done in a safe manner.”
[Id.]. When asked if he visually examined it, Mr. Mason replied:
“Most likely, yes, I do.” [Id. p. 41].
Mr. Mason maintained during his deposition that safety harnesses would have
been available at the job site, but he did not independently recall whether
there were any harnesses available on that day, what type of instruction may
have been given, nor did he recall seeing any harnesses on the ground or on the
scaffold when he was at the construction site after the accident. He did not
recall seeing workers there using harnesses in the past, but said that he would
stop the work were workers there without harnesses, thus they “would
have” been using them. [Id. p. 52]. He said: “. . . I
don’t recall what I saw the day of the accident.” [Id. p.
DISCUSSION AND CONCLUSION
Claimant argues that the State should be held strictly liable as a matter of
law based on violation of Labor Law §240(1), in that the State failed to
provide and properly place, operate and secure the safety equipment mandated.
Labor Law §240(1) - the so-called Scaffold Law - imposes strict liability
and requires “. . . [a]ll contractors and owners and their agents . . .
[with some exceptions] in the erection, demolition, repairing, altering
painting, cleaning or pointing of a building or structure shall furnish or
erect, or cause to be furnished or erected for the performance of such labor,
scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces,
irons, ropes, and other devices which shall be so constructed, placed and
operated as to give proper protection to a person so employed.” The work
being done should contain an elevation related risk, and the injury suffered by
the worker should be associated with that risk.
Civil Practice Law and Rules §3212(b) provides in pertinent part:
. . . A motion for summary judgment shall be supported by affidavit, by a copy
of the pleadings and by other available proof, such as depositions and written
admissions. The affidavit shall be by a person having knowledge of the facts;
it shall recite all the material facts; and it shall show that there is no
defense to the cause of action or that the cause of action or defense has no
merit. The motion shall be granted if, upon all the papers and proof submitted,
the cause of action or defense shall be established sufficiently to warrant the
court as a matter of law in directing judgment in favor of any party . . . the
motion shall be denied if any party shall show facts sufficient to require a
trial of any issue of fact. If it shall appear that any party other than the
moving party is entitled to a summary judgment, the court may grant such
judgment without the necessity of a cross-motion.
Assuming a movant has made a prima facie showing of entitlement to judgment as
a matter of law by proffering sufficient evidence to eliminate any genuine,
material, issues of fact, the party in opposition to the motion for summary
judgment must tender evidentiary proof in admissible form to establish the
existence of material issues which require a trial. Winegrad v New York
University Medical Center
, 64 NY2d 851 (1985); Zuckerman v City of New
, 49 NY2d 557 (1980). The use of an attorney’s affirmation
appending pertinent deposition testimony, affidavits, documentary evidence, and
a verified pleading reciting material facts, is not a fatal procedural flaw in a
presentation. Alvarez v Prospect Hospital
, 68 NY2d 320, 325
Although defendant argues that claimant’s attorney’s affirmation
contains only conclusory statements, this inaccurately describes what supporting
material has been included, namely, claimant’s deposition testimony, the
deposition testimony of Mr. Mason, an affidavit from Emmanuel Perdikakis, and
documents generated by the State’s agents, including the emergency
contract, a report of the accident and an investigatory report. Accordingly, and
as an initial matter, the Court will treat the motion as adequately supported.
The Court is satisfied, based upon claimant’s presentation, and the lack
of presentation of any material contradictory information, that claimant is
entitled to judgment as a matter of law, as there are no triable issues of fact
presented as to the claimant’s cause of action premised upon violation of
Labor Law §240(1). Claimant has clearly established that he was engaged
in an activity protected under Labor Law §240(1). See
generally Rocovich v Consolidated Edison Co., 78 NY2d 509 (1991).
Failure to provide appropriate safety devices, or providing only defective or
insufficient equipment, violates Labor Law §240(1). Zimmer v Chemung
County Performing Arts, Inc., 65 NY2d 513 (1985); Bland v
Manocherian, 66 NY2d 452 (1985); Labodin v State of New York, 242
AD2d 563 (2d Dept 1997). Furthermore, Claimant’s unprotected exposure to a
gravity related risk by being directed to lift an awkward and heavy object while
standing on an unguarded scaffold without a harness only added to the risk of
injury. Liability, of course, is contingent upon both a finding of a statutory
violation and proximate cause.
Since claimant has established prima facie entitlement to judgment as a matter
of law, it is incumbent upon the defendant to come forward and satisfy its
burden. The opposing party “must produce evidentiary proof in admissible
form sufficient to require a trial of material questions of fact on which he
rests his . . . [defense] . . . or must demonstrate acceptable excuse for his
failure to meet the requirement of tender in admissible form; mere conclusions,
expressions of hope or unsubstantiated allegations or assertions are
insufficient . . . (citations omitted).” Zuckerman v City of New
York, supra, at 562.
Defendant’s suggestion that the testimony of Mr. Mason presents an issue
as to whether the claimant was provided and refused a safety harness is not
persuasive. Mr. Mason - throughout his deposition - clearly indicated he was
not present on the day of the accident and that he could not provide any
meaningful testimony concerning the job at all. He had only the most marginal
recollection of any details concerning the mechanics of the job or who he spoke
with, and spoke in generalities concerning what his practice might
were certain conditions present. Having Mr. Mason pronounce - after he had
declared he had no independent recollection of seeing any Thoro employees at the
job site - that had he seen workers working without harnesses, they would have
been stopped, is nothing more than speculation built upon speculation. This is
not evidence, sufficient to rebut the prima facie showing made by claimant that
he fell from a scaffold that contained a guardrail only on one side, without a
safety harness, and fell through an opening created when the scaffold swayed
while he worked with his supervisor, at his supervisor’s instruction.
Cf. Job v 1133 Building Corp.
, 251 AD2d 459 (2d Dept
Similarly, defendant’s argument that there are inconsistencies between
the versions of the accident presented by claimant and Mr. Perdikakis is not
persuasive. First, there is no basis to characterize Mr. Perdikakis’
affidavit as “self-serving”, as does counsel for the defendant. He
is not a party to the action, there is no evidence of collusion or other
suggestion on this record that what he attests to is not to be credited, nor do
whatever discrepancies there are raise a meaningful credibility issue sufficient
to defeat summary judgment. Second, in terms of the accident descriptions
offered by the only two witnesses to it, Mr. Vrettos and Mr. Perdikakis, they
are not inconsistent as to material facts in any event. Both indicate there was
no safety equipment such as harnesses
was no guardrail on the building side of the scaffold, and that as they lifted
the lintel, the scaffold swayed out, and claimant fell through the gap. The
mechanics of the accident as described by each witness is the same. Whether
they placed the lintel on the scaffold first, or the gap opened up twice,
whether there was a ladder placed at ground level at one location or another to
get on and off the scaffold, are simply not material issues of fact sufficient
to defeat summary judgment. The risk of injury - and the concomitant
imposition of liability - arose when they were maneuvering the heavy lintel on a
swaying scaffold without safety equipment.
In a similar vein, the fact that while claimant fell Mr. Perdikakis may not
have fallen is not a significant triable issue as argued by defendant, nor is
any alleged conversation between Mr. Perdikakis and claimant at the hospital, in
which Mr. Perdikakis allegedly told claimant - as reported by claimant at his
deposition - that the scaffold opened up but did not tell claimant how or what
caused the scaffolding to open up.
The fluid legal issue presented by these facts relates to when it will be
determined as a matter of law that safety equipment was on-site, adequately
explained and offered, and perhaps refused. Thus in Cahill v Triborough
Bridge and Tunnel Auth., 4 NY3d 35 (2004), the Court of Appeals found that a
triable issue of fact existed as to whether the worker knew that adequate safety
devices were available but chose not to use them. In that case, however, there
was detailed evidence on the motion of exactly what equipment was available, how
it was to be used, the fact of worker instruction including frequent safety
talks and the injured plaintiff’s attendance at same; and information that
the injured plaintiff had been seen not using a safety line on a previous
occasion, leading to specific, one-on-one instruction of the use of safety
equipment. There was specific information concerning the day of the accident to
the effect that the injured plaintiff ran out of some material, went down to the
ground to obtain more, and then chose not to use an available safety line to
ascend, but instead used a safety hook in his harness - intended to keep him in
position once he had reached his working place - as a means of ascending by
repeatedly hooking and then un-hooking his way up the form. The Court of Appeals
“The controlling question . . . is not whether plaintiff was
‘recalcitrant,’ but whether a jury could have found that his own
conduct, rather than any violation of Labor Law §240(1), was the sole
proximate cause of his accident . . . Here, a jury could have found that
plaintiff had adequate safety devices available; that he knew both that they
were available and that he was expected to use them; that he chose for no good
reason not to do so; and that had he not made that choice he would not have been
injured. Those factual findings would lead to the conclusion that defendant has
no liability under Labor Law §240(1), and therefore summary judgment should
not have been granted in plaintiff’s favor.” Cahill v Triborough
Bridge and Tunnel Auth.
Yedynak v Citnalta Construction Corp.
, 22 AD3d 840, 841 (2d Dept
; cf. Pichardo v Aurora
, 29 AD3d 879 (2d Dept
“The mere presence of ladders or safety belts somewhere at the worksite
does not establish ‘proper protection,’ leaving for . . . [the fact
finder] only the question whether the absence of safety devices was a proximate
cause of the plaintiff’s injury . . . (citation omitted).”
Zimmer v Chemung County Performing Arts, Inc., supra at 524;
see also Bland v Manocherian, supra at 461; Lickers v
State of New York, 118 AD2d 331, 334 (4th Dept 1986); Koumianos v State
of New York, 141 AD2d 189, 192 (3d Dept 1988). Indeed, it has been found as
a matter of law that providing a scaffold alone, when additional equipment may
be necessary to make it safe, such as when it lacks an inside safety rail, does
not insulate an owner from liability under this statute. See e.g.
Smizaski v 784 Park Avenue Realty, Inc., 264 AD2d 364, 365 (1st Dept
1999), modified,___AD2d___, 715 NYS2d 631; see also Morrison v
City of New York, 306 AD2d 86 (1st Dept 2003).
A recent decision from the Second Department modified the trial court’s
denial of cross-motions for summary judgment, to provide in part that with
respect to the plaintiff’s Labor Law §240(1) cause of action a
triable issue of fact was presented “. . . as to whether or not such
safety devices were available and/or adequate and, if so, whether the plaintiff
disregarded the safety devices made available to him.” Garlow v
Chappaqua Central School District,
38 AD3d 712 (2d Dept 2007). From the
very limited facts presented it appears that there was some showing that at the
time of his 16-foot fall from the top of a concrete wall the plaintiff there was
wearing an employer provided safety harness and lanyard, which was not
“tied off.” The triable issue is set forth as follows: “The
plaintiff claims he did not tie off the lanyard because there were no safety
cables or safety lines nearby where he could attach the safety equipment, while
the defendants argue that the plaintiff should have asked the safety crew to
install a safety cable.” Presumably, the court had some other indicia
that equipment was available or explained, not readily discernable from the
Otherwise, this decision
seems distinguishable from other case law to the effect that an employer’s
simple declaration that safety equipment is available on site, without more,
does not raise triable issues. See e.g. Palacios v Lake Carmel Fire
, 15 AD3d 461 (2d Dept 2005); see Zimmer v Chemung
County Performing Arts, Inc.
at 524; see also Bland
For example, in Palacios v Lake Carmel Fire Dept., Inc., supra,
the Appellate Division reversed summary judgment in favor of the injured worker.
Although plaintiff there had made a prima facie showing of entitlement to
judgment under Labor Law §240(1), defendant raised a triable issue of fact
regarding availability of safety devices. The court said:
“. . . it is not enough to defeat liability to show ‘the mere
presence of alleged safety devices somewhere on the job site [citations
omitted], nor the mere fact that generalized safety instructions were given at
some point in the past’. . . (citation omitted). Here, the
defendant’s proof consisted of deposition testimony that the plaintiff
was instructed to use a scaffold rather than a ladder, that the plaintiff used
the scaffold to perform the same work on a different section of the building on
the previous workday, and that the scaffold was located within the building
where the plaintiff was cutting the materials he was installing.”
Palacios v Lake Carmel Fire Dept., Inc., supra at 463. See also
Aguilar v New York City Housing Auth., 8 Misc 3d 1011 (A) (unreported
disposition) (Sup Ct, NY County, 2005).
Based on the foregoing, claimant has established without material contradiction
that he was engaged in the repair of a structure owned by the State of New York,
as an employee of a contractor hired by the State to perform an emergency
repair, that the repair work claimant was doing involved an elevation related
risk, that no safety equipment other than an unsecured scaffold was supplied for
claimant’s use on the day of the accident, and that his accident and
resulting injuries occurred because of an elevation related risk, and such
injuries were proximately caused by the failure to provide adequate safety
Accordingly, claimant’s motion for partial summary judgment on the issue
of liability under Labor Law §240(1) is in all respects granted.
Let interlocutory judgment be entered accordingly. Trial on the issue of
damages shall be scheduled as soon as is practicable.
April 2, 2007
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
. In prior motion practice the date set forth
in the claim was changed from September 16, 2003 to September 15, 2003.
See Vrettos v State of New York
, Claim No. 108900, Motion No.
M-70985, UID #2006-030-513 (Scuccimarra, J., signed February 9, 2006).
.“A fair reading of the attorney’s
affirmation, the hospital records and the defendant’s deposition testimony
compel the conclusion that no material triable issues of fact exist as to the
claims of malpractice asserted against the defendant in the amended complaint as
amplified by the bill of particulars. The fact that defendant’s
supporting proof was placed before the court by way of an attorney’s
affirmation annexing deposition testimony and other proof, rather than
affidavits of fact on personal knowledge, is not fatal to the motion . .
. Plaintiff’s motion for partial summary
judgment denied because there was conflicting evidence as to whether a safety
device was provided to the plaintiff and whether the plaintiff refused to use
the safety device. From the limited facts recited therein, in opposition to the
plaintiff’s motion, defendant provided a foreman’s affidavit wherein
the foreman alleged that a safety belt had been provided, that it was stored at
the end of each day with the plaintiff’s work-clothes at the worksite;
that the plaintiff had been instructed at weekly safety meetings on how to use
the device, that plaintiff had always previously used the belt, and that it was
available on the day of the accident.
. When Mr. Vrettos was asked about safety
equipment, he said he was given nothing in an early part of his deposition,
[Exhibit F, pp.24 and 29], he remembered working with a safety harness on one
other job in Washington, D.C. , [Ibid.
p.30] and then responded when
asked again whether he was given any safety belt or safety harness “[n]o,
.]. He was asked: “Did you ask Manoli
[Perdikakis] for any safety harness?” and responded: “He knows his
job, he should have given me one. What can I say.”[Id
.]. Given the
follow-up question “My question is you did not ask him for one?” ,
Mr. Vrettos responded: “I thought it was upstairs and I would have gotten
it there. He didn’t give me any.” [Ibid.
queries elicited responses from claimant that are equivocal at best.
. Three years later cross-motions for summary
judgment were modified to the extent that defendant’s motion was granted,
and that no triable issues of fact existed, the Second Department finding that
the defendants had established prima facie that the worker painting the
Verrazano Bridge who fell 13 feet was “...provided with a safety harness
and a lanyard, that he was present for several safety meetings at which he was
instructed in the use of the harness, that he was instructed to tie-off the
harness at all times while using the scissor lift, and that the plaintiff
intentionally unhooked his harness and climbed on the railing of the scissor
lift, in direct violation of these instructions . . . Moreover, the affidavit of
one of the plaintiff’s supervisors further demonstrated that the plaintiff
was instructed to paint only those areas which he could safely reach. The
plaintiffs failed to submit any evidence to contradict this . . . [and]
defendants thus established that the plaintiff’s conduct was the sole
proximate cause of his injuries . . . (citations omitted
Leniar v Metropolitan Transit Authority
, 37AD3d 425, 426(2d Dept 2007).
. Summary judgment in favor of defendant. Sole
proximate cause of fall was worker’s own conduct in failing to use
available safety equipment. Plaintiff testified at deposition that he was
provided with a safety harness, instructed in the proper use of the harness, and
directed by his supervisors to use it at all times while on the roof or
scaffolding. There was evidence that the safety line was available near where
plaintiff fell, and that a harness would have prevented his fall. Plaintiff had
further testified that although everyone usually wore a safety harness, it was
near the end of the day and they were getting ready to go home.
.Defendant did not raise triable issue of fact
sufficient to rebut plaintiff’s prima facie showing of entitlement to
judgment as a matter of law by defendant’s’ failure to provide
proper protection for the work being performed, and that this failure was a
proximate cause of the accident. Plaintiff injured when performing
waterproofing work from an extension ladder, that he and another worker - his
supervisor - had disassembled. Lower portion of ladder he was using slipped
away from wall because there was no securing device at the top, and he fell to
his injury. Defendant’s argument that the “misuse” of the
ladder was the sole proximate cause of accident rejected. Manner of work
performed consistent with his supervisor’s instructions.
.Indeed, this would seem to impose a
requirement on a plaintiff to ascertain whether the mechanisms for the proper
installation of safety equipment - such as a lanyard - is available, and is not
readily reconciled with the intent of the statute. The equipment, and all its
appurtenant attaching devices, should be provided and explained under a plain
reading of the statute and the attendant case law.