Worker's Temporary Removal of Safety Harness No Defense

Saturday, June 16, 2007 | 0

By Larry Rogak

Nane v. Dormitory Authority of the State of New York

100005/05

(Supreme Court, Richmond Co.) (McMahon, J.)

On December 9, 2003, the plaintiff allegedly was injured on a construction site at 930 Willowbrook Road, Building 11, Staten Island, New York. The owner of the building was the Dormitory Authority of the State of New York [DASNY]. The plaintiff was an employee of Marfi Contracting Corporation, the roofing contractor. The plaintiff was traversing along a series of planks at different elevations affixed to the roof with brackets, when one of the planks collapsed, causing him to fall 12 feet to the ground. The plaintiff had disconnected his safety lanyard in order to move to a lower elevation plank and had not yet reconnected the lanyard before the plank collapsed.

Plaintiff commenced this action against DASNY alleging violations of Labor Law Section Section 200, 240(1) and 241(6) and common law negligence. Plaintiff moved for partial summary judgment on the issue of liability based on a violation of Labor Law Section 240(1). DASNY cross-moved for partial summary judgment.

In January, 2007, after the plaintiff filed the note of issue and served its motion for partial summary judgment on the issue of liability, DASNY commenced a third-party action for contractual indemnification against the plaintiff's employer Marfi Contracting Corporation and Marfi Contracting, LLC. The plaintiff now moved pursuant to CPLR 603 to sever the third-party action.

"Labor Law Section 240(1) imposes absolute liability upon owners and contractors who fail to provide or erect safety devices necessary to give proper protection to workers exposed to elevation-related hazards," wrote the Court. Proof of a collapse of a safety device constitutes a prima facie showing that the statute was violated, thereby establishing the plaintiff's entitlement to judgment as a matter of law on the issue of liability. The burden then shifts to the defendant to present evidence sufficient to raise a triable issue of fact as to whether there was no statutory violation and the worker's conduct was the sole proximate cause of the accident."

"Contrary to DASNY's contention, there is no evidence that the plaintiff was recalcitrant in the sense that he deliberately refused to use the available safety lanyard. The Second Department has held in a case analogous to the instant case that the proximate cause of the accident was the collapse of the scaffold and not the plaintiff's temporary removal of his safety harness (see, Moniuszko v. Chatham Green, Inc., 24 AD3d 638 [2d Dept. 2005]; see also, Aragon v. 233 West 21st Street, Inc., 201 AD2d 353 [2d Dept. 1994]). Additionally, the Second Department found that even if the plaintiff was partially at fault, a worker's contributory negligence is not a defense to a Labor Law Section 240(1) claim (see, Moniuszko v. Chatham Green, Inc., 24 AD3d 638, supra; see also, Stolt v. General Foods Corp., 81 NY2d 918 [1993]). Accordingly, the plaintiff's motion for partial summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law Section 240(1) is granted and DASNY's cross-motion for partial summary judgment dismissing the Labor Law Section 240(1) cause of action is denied."

"Turning to the plaintiff's motion to sever the third-party action for contractual indemnification, the court finds that severance is appropriate in the instant case. The plaintiff is ready to proceed to trial on the sole issue of damages, while there is no evidence that discovery has even begun in connection with the claim for contractual indemnification. Thus, severance is appropriate as it will avoid prejudicing the plaintiff by delaying the trial, and it will not harm the defendant/third-party plaintiff DASNY."

Plaintiff's motion for partial summary judgment on the issue of liability on the cause of action based on a violation of Labor Law Section 240(1) was granted, and plaintiff's motion pursuant to CPLR 603 to sever the third-party complaint was granted.

Lawrence N. Rogak is an insurance defense attorney in New York. He writes The Rogak Report, a daily insurance law newsletter, and his insurance law articles appear in several industry publications. For more information see www.Rogak.com.

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