Ramirez v. Shoats , 911 N.Y.S.2d 310 ( 2010 )

Order, Supreme Court, Bronx County (Stanley B. Green, J.), entered August 26, 2009, which, to the extent appealed from, denied defendant-appellant building owner’s motion for summary judgment dismissing the Labor Law § 240 (1) and § 241-a causes of action as against her, affirmed, without costs.

Plaintiff was injured when a piece of corrugated metal covering the unfinished landing of a newly constructed stairway slipped under his feet, causing him to fall to the basement level of a building under construction. While defendant did not dispute at oral argument that plaintiff fell more than one story, the record is quite unclear as to which floor plaintiff fell from, a con fusion that is perhaps due to which floor each party considers to be the “first” floor. In his affidavit in opposition to summary judgment, plaintiff claims that he fell while using the “new stairway which connected the second floor to the first floor.” Plaintiff testified that, at the time of his accident, temporary ladders connected the fourth floor to the third floor and the third floor to the second floor. Plaintiff testified that “everybody” used the stairway to descend from the second floor. He claims that “[i]f a temporary ladder affording access from the second floor to the first floor had been made readily available to me, I would have most definitely utilized it.”

However, a reading of the record, plus the explanation from defendant’s counsel at oral argument, supports a different location for the accident. This second scenario suggests that plaintiff had used a ladder to descend from his work area on the fourth floor to reach the third floor. Then, he utilized an unfinished staircase to descend from the third floor to the second floor (not from the second floor to the first). Under this scenario, the accident occurred at the base of the landing of the stairs near the second floor, and there would have been a ladder available as an alternative means of descent because it is undisputed that ladders connected the third floor to the second floor. Because it is unclear what floor plaintiff fell from, it is also unclear whether the stairway was the sole means of descent and thus a safety device within the meaning of Labor Law § 240 (1) (see Griffin v New York City Tr. Auth., 16 AD3d 202 [2005]; Crimi v Neves Assoc., 306 AD2d 152 [2003]). The conflicting testimony concerning where plaintiff fell and defendant’s testimony that she observed a ladder connecting the first and second floors raise an issue of fact whether the stairway was the sole means of descent from plaintiffs work area.

The dissent is simply incorrect when it states that a permanently installed structure used as a passageway cannot be a statutory safety device (see Jones v 414 Equities LLC, 57 AD3d 65, 78 [1st Dept 2008] [criticizing as “based on an erroneous premise,” the rule that collapse of a permanent structure cannot give rise to section 240 (1) liability]; see also Espinosa v Azure Holdings II, LP, 58 AD3d 287, 291 [1st Dept 2008]).

Given that there is a question whether the stairway was plaintiffs sole means of access to and from his work area and thus was a safety device within the meaning of Labor Law § 240 (1), the failure of the corrugated metal landing to protect plaintiff from falling through the stairs precludes a finding as a matter of law that plaintiffs conduct was the sole proximate cause of his injuries (see Miraglia v H & L Holding Corp., 36 AD3d 456, 457 [2007], lv denied 10 NY3d 703 [2008]; Osario v BRF Constr. Corp., 23 AD3d 202 [2005]; Lajqi v New York City Tr. Auth., 23 AD3d 159 [2005]). Nor was plaintiff a recalcitrant worker as a matter of law. Plaintiff testified that the foreman had told him and his coworkers to use the staircase and that other workers had safely proceeded down the stairs ahead of him (see Miraglia, 36 AD3d at 456-457).

Because of these unresolved issues of fact, defendant, the moving party, has not carried her burden on summary judgment. Accordingly, the court was correct to deny her motion.

Nevertheless, even if plaintiff had an alternative way to get to and from his work area, the stairs provided the most efficient means of access. It flies in the face of common sense to require a worker to utilize a fabricated ladder built from wood at the work site over a seemingly completed staircase. The Court of Appeals has recently noted that we have historically read the Labor Law statute too narrowly (see Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009] [“The breadth of the statute’s protection has, however, been construed to be less wide than its text would indicate”]). Given this recent admonition, it seems almost ridiculous to preclude recovery merely because plaintiff had an alternative means to descend from his work area, especially when that alternative route may have seemed more dangerous than the stairs plaintiff did utilize.

Plaintiff is also entitled to the protection of Labor Law § 241-a, stating: “Any men working in or at elevator shaftways, hatchways and stairwells of buildings in course of construction or demolition shall be protected by sound planking.” The dissent would deprive plaintiff of the benefit of this statute because, given that his work area was on the fourth floor, he was not “working in or at the stairwell.” However, we must afford this statute a liberal interpretation (see Seiger v Port of N.Y. Auth., 43 AD2d 339, 341 [1974] [“the statute here involved should be construed liberally”]). Should the version of events in plaintiffs affidavit prove accurate, the only way for plaintiff to reach his work area was via the stairway. The danger the unsecured planking created on that singular route is a hazard that Labor Law § 241-a redresses, whether or not plaintiffs task required his presence in that precise location at the work site.

We have considered defendant’s remaining contentions and find them unavailing. Concur — Moskowitz, Freedman and Román, JJ.