Cases decided on: August 13, 2019
By Sweeny Jr., J.P., Manzanet-Daniels, Gische, Tom, Moulton, JJ. Waldemar Biaca-Neto, et al., Plaintiffs-Appellants, -against- Boston Road II Housing Development Fund Corporation, et al., Defendants-Respondents. Plaintiffs appeals from the judgment of the Supreme Court, New York County (James E. d’Auguste, J.), entered May 7, 2018, dismissing the action, and from the order of the same court and Justice, entered April 5, 2018, which denied plaintiffs’ motion for partial summary judgment as to liability on the Labor Law §240(1) claim and granted defendants’ motion for summary judgment dismissing the complaint. Law Offices of Lawrence P. Biondi, Garden City (Lisa M. Comeau and Lawrence B. Biondi of counsel), for appellants. Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell and Rebecca Barrett of counsel), for respondents. TOM, J. The main focus of our appellate review addresses where to locate the boundaries of a defendant’s responsibilities under Labor Law §240(1) when a worker is injured upon exiting a scaffold by an impermissible means when a safe mode of exit is readily available. The record evidence amply supports the motion court’s conclusion that defendants cannot be held liable for plaintiff Waldemar Biaca-Neto’s (plaintiff) injuries under the Scaffold Law. Plaintiff was employed by nonparty subcontractor Advance Contracting Solutions LLC (ACS). The property owners were the defendants Boston Road Housing entities, which hired defendant Mountco Construction and Development Corp. as general contractor, which hired ACS to undertake concrete and masonry work. Plaintiff’s tasks included assembling scaffolds. At the time of the accident, plaintiff and a coworker, Fabio DeSilva, were working on the assembly of an exterior scaffold at the seventh- floor level of the building being constructed. The platform of the scaffold was reached by a scaffold staircase, which plaintiff used on the morning of his accident, and a worker could also ascend and descend the scaffold by means of a hoist. Plaintiff wore a lifeline attached to a harness to protect him from falls, and the perimeter of the scaffold was enclosed by protective framing and basketing to catch any falling objects. No evidence was submitted to establish that the scaffold was improperly constructed or that necessary safety devices were unavailable. Plaintiff’s supervisor, Leandro Andrade, testified that the interior of the building was easily reached by a worker descending the scaffold staircase, then ascending interior stairways to whichever level inside the building was the destination. Mario Condeza, Mountco’s assistant project superintendent, who regularly performed walk-throughs at the project, testified that window cuts on the building were designated as safety control zones where workers were not allowed, absent permission from a work site safety manager, and that workers specifically were not allowed to enter the interior of the building from a scaffold through a window but, rather, were supposed to descend the scaffold staircase and enter the building. Condeza further testified that he was unaware of workers using such a shortcut and that any worker who climbed through a window would have been removed from the job site. Moreover, he testified, he had heard the daily site safety manager, Charles Weissman, during a weekly site safety meeting, give an instruction that workers were not to enter the building’s interior through any window opening. Plaintiff was injured while on the scaffold on September 3, 2014. His account as to how this occurred changed over time, and his version on appeal is refuted by both documentary and testimonial evidence. DeSilva, plaintiff’s coworker, testified that Andrade directed from inside the building that he wanted plaintiff and DeSilva to work on the other side of the building. Rather than descending the scaffold staircase or descending by the hoist, DeSilva climbed onto the scaffold’s frame to enter through the window cut-out, which was about two steps above the frame of the scaffold. When DeSilva was inside the building he heard plaintiff call out. He then observed plaintiff standing on the metal scaffold frame that DeSilva had just used to enter through the window cut-out. Plaintiff told him that he had “popped” his shoulder in pulling himself up the scaffold in order to follow DeSilva through the window. Andrade and DeSilva helped plaintiff through the window cut-out, then down to the office. Since plaintiff was not conversant in English, DeSilva related to Michelle Miller at the office that plaintiff had injured his shoulder by pulling himself up on the scaffold. Miller included the statement in the incident report, and DeSilva signed it. The statement, related from plaintiff through DeSilva, explained: “I was passing [through] scaffold [,] reached up to hold scaffold and my arm popped. The same thing happened to my left shoulder a while ago.” The report identified Andrade and DeSilva as witnesses. Miller’s own report documented that plaintiff “came into trailer with Leandro Andrade and advised me as he was walking passing [sic] [through] scaffold he reached his arm out and his shoulder popped and he could not move it. I asked him if he fell, was carrying anything heavy and he said no.” Eoin O’Mahoney, a construction supervisor, testified that he was with Miller when plaintiff and Andrade reported the incident. He heard Andrade, interpreting into English for plaintiff, relate to Miller that plaintiff injured his right shoulder when he reached for a bar on the scaffold to enable him to enter through the window cut-out. O’Mahoney also confirmed that when Miller asked whether plaintiff fell, Andrade, responding for plaintiff, answered in the negative. Andrade testified that plaintiff related to him after the incident that when he reached up to hold onto a bar on the scaffold with the intent of climbing through the window cut-out, he pulled his right shoulder out of its socket, but that plaintiff had not claimed to have fallen. Andrade testified that he had never advised workers to enter the building interior through a window cut-out. The September 6, 2014 site safety log compiled by Weissman documented that “ACS laborer reportedly reinjured a dislocated shoulder” – again, no fall. The September 8, 2014 accident report prepared by Condeza related that “one of the ACS Construction laborer[] installing scaffolding dislocated his shoulder and went to the hospital… . “ Emergency room documentation related plaintiff’s explanation that he had been “pulling something heavy off of a shelf,” causing a dislocation of his right shoulder and that he “popped” his own shoulder back into place after which he walked around. The September 23, 2014 workers’ compensation form reflected that plaintiff dislocated his right shoulder “while moving from scaffold into building.” Plaintiff’s subsequent theory before the motion court was that he climbed onto the scaffold frame in order to enter the building through the window cut-out and that he fell backwards and suffered injuries to his spine and shoulders, eventually requiring spinal fusion and incapacitating him from work. Plaintiff gave this version of the accident during his deposition. He described the platform of the scaffold as three side-by-side 5-foot-wide platforms totaling 15 feet in width, with the scaffold framing continuing well above the platform. The steel beam securing the scaffold to the building was seven feet above the platform. A protective wooden railing formed the perimeter of the scaffold. The steel beam was about two feet above the bottom of the window cut. Describing himself as five feet, eight inches, plaintiff testified that the bottom of the window was about three or four feet above his head. Plaintiff claimed that Andrade directed him and DeSilva to work in the back of the building since the “brick guys” would be using the scaffold, and, following DeSilva, he climbed onto the beam from the frame around the scaffold to enter the building through the window. He knew that he was not supposed to enter the building from the scaffold through the window. Before the accident, he was wearing a lifeline, which he took off in order to climb up onto the beam. Plaintiff claimed that he slipped as he stepped from the beam to the window and fell onto the platform, hitting his head and dislocating his shoulder. He also claimed that there had been some oil, which he had used to lubricate the screws when assembling the scaffold, on the beam, without, however, claiming that he slipped on the oil. DeSilva, by contrast, testified that he had not observed any oil on the scaffold. Plaintiff’s deposition testimony that his injuries were caused by a fall is contradicted by his earlier statements made to coworkers immediately after the incident and recorded in various reports of the accident including the accident report, emergency room report and plaintiff’s workers’ compensation form. When asked why the emergency room medical records reflected that plaintiff had only right shoulder pain whereas he was claiming additional injuries and pain, he professed to be surprised, since a neck collar had been placed on him and he was given morphine. The dissent, conceding that plaintiff’s statements as recounted by several other people and recorded in various reports of the accident appear to contradict his deposition testimony, nevertheless concludes that the contradictions are reconcilable, and attempts to reconcile them. I disagree. To the extent plaintiff attempts to construct a counter narrative of how he sustained his injury, I reject it. Plaintiff’s new contradictory testimony should not be considered in deciding this summary judgment motion (see Caraballo v. Knightsbridge Apt. Corp., 59 AD3d 270 [1st Dept 2009]; Capraro v. Staten Is. Univ. Hosp., 245 AD2d 256 [2d Dept 1997]). In any event, missing from plaintiff’s narrative even as modified, aside from an ambiguous unsupported intrusion of oily screws having little apparent connection to the alleged fall, is any evidence of any demonstrable defect in the scaffold itself or that plaintiff’s alleged injuries were related to unavailable safety devices, the pertinent factors for determining Labor Law §240 liability (see Narducci v. Manhasset Bay Assoc., 96 NY2d 259 [2001]). The dissent’s contention that we, the majority, and Supreme Court, have ignored a coworker’s claim that he observed plaintiff’s fall and that we are not considering a factual issue, is addressing a matter that is not relevant in terms of the requirements for finding liability under section 240. A fall or an injury on a scaffold by itself does not automatically implicate section 240 liability. To invoke section 240, an appropriate safety device must be lacking or defective, thereby exposing workers to elevation-related risks, and must have proximately caused the worker’s injuries (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501 [1993]; Nieves v. Five Boro A.C. & Refrig. Corp., 93 NY2d 914 [1999]). As noted, plaintiff testified that he fell while, on his own volition, trying to climb the frame of a non-defective scaffold, which does not establish Labor Law §240 liability. Even if plaintiff’s present account of the accident is accepted at face value, it does not avail him, because it fails to connect to any defect in a required safety device. Plaintiff’s decision to climb onto a beam seven feet above the platform to enter an interior location where he was not working by a means he conceded he knew was inappropriate, when the obvious, safe and compliant means of egress was the scaffold’s stairway, which he himself had assembled, did not implicate Labor Law §240. The dissent contends that because workers might have climbed through the window openings, a safety device was required to allow them to do so safely. This sidesteps the record evidence that workers were prohibited from doing so. The dissent thus proposes that, in effect, a defendant must anticipate that a worker will disobey instructions and accordingly must undertake to provide additional precautions to safely facilitate the prohibited conduct. Labor Law §240(1), which imposes safety requirements to protect workers exposed to elevation-related risks within the scope of their employment, imposes no such obligation on owners and general contractors [or defendants]. As a practical matter, such a non-statutory obligation would be unreasonably open-ended, requiring defendants to anticipate and address any number of potential areas of what must be seen as misconduct by workers, and then imposing strict liability should any be overlooked. In any event, the short-cut taken by plaintiff was not overlooked – it was prohibited specifically because it presented dangers that were outside the scope of the assigned tasks, and alternative, safe, modes of access and egress were available. Felker v. Corning Inc. (90 NY2d 219 [1997]) and Orellano v. 29 E. 37th St. Realty Corp. (292 AD2d 289 [1st Dept 2002]), which address the inadequacy of a safety device protecting a worker who was overreaching from a ladder to, respectively, paint and install a light fixture, do not support the dissent’s point with respect to the facts of this case. Nor does the dissent’s reliance on Hernandez v. Argo Corp. (95 AD3d 782 [1st Dept 2012]), where the configuration of the scaffold assigned to the worker required him to regularly cross an open and unguarded three-foot gap in the scaffold. Plaintiff stepped outside of his assigned work when he unhooked his safety harness and climbed up on the scaffold frame to enter through the window opening in violation of work rules, for the sake of saving the few minutes that would be expended by using the safe and proper access devices. Whether or not he did so knowledgeably or was simply following another worker is not a valid basis to attribute responsibility to the defendants. Nimirovski v. Vornado Trust Co. (29 AD3d 762 [2nd Dept 2006]), cited by the dissent, where the scaffold on which the worker stood was inadequate to withstand the shock of a falling object, causing it to shake and the worker to fall, is similarly inapposite both factually and legally. Plaintiff’s claim was correctly dismissed because defendants demonstrated as a matter of law that plaintiff’s injury was not proximately caused by a violation of section 240(1). Plaintiff’s own actions were the sole proximate cause of his injuries. Plaintiff conceded that scaffold stairs were available to him to descend several floors and reenter the building. Further, as already noted, he admitted during his deposition that he knew he was not supposed to climb through the window and that it would have been safer to use the scaffold stairs. On appeal, he essentially argues, inter alia, that reentry via the scaffold stairs would have taken more time and would have been an inconvenience. Plaintiff also admitted to unhooking his safety line in order to climb through the window cut-out. Under the circumstances, adequate safety devices were available for plaintiff’s use at the job site, and his own actions in unhooking his safety line and climbing through the window were the sole proximate cause of his injuries (see Robinson v. East Med. Ctr., LP, 6 NY3d 550, 554-555 [2006]; Montgomery v. Federal Express Corp., 4 NY3d 805 [2005]; Egan v. Monadnock Constr., Inc., 43 AD3d 692, 693 [1st Dept 2007], lv denied 10 NY3d 706 [2008]). Because plaintiff’s actions were the sole proximate cause of his injuries, the claims for common-law negligence and violation of Labor Law §200 were also properly dismissed (Comes v. New York State Elec. & Gas Corp., 82 NY2d 876 [1993] [Labor Law §200]; Salvador v. New York Botanical Garden, 71 AD3d 422, 423 [1st Dept 2010] [common-law negligence]). Plaintiff also failed to raise an issue of fact as to a violation of the Industrial Code, as required to support the claim under Labor Law §241(6) (see Griffin v. Clinton Green S., LLC, 98 AD3d 41, 49 [1st Dept 2012]). Industrial Code (12 NYCRR) §23-1.7(d), which requires that an employer “not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition,” clearly does not include a crossbar, such as the one from which plaintiff allegedly slipped, because it is limited to “working surfaces.” While a scaffold platform on which workers stand and work would seemingly come within the provision, structural crossbars which simply hold the scaffold together are not working surfaces required for standing or walking (cf. Doyne v. Barry, Bette & Led Duke, 246 AD2d 756, 759 [3rd Dept 1998] [bar joists, which plaintiff was required to traverse, may qualify as an "'elevated working surface'"]). The remaining sections of the Industrial Code upon which plaintiff relies also do not apply to this case. Finally, even if there were a basis for imposing liability on defendants, plaintiff Calina Neto’s claim for loss of consortium could not be determined on this record (see Diarrassouba v. Consolidated Edison Co. of N.Y. Inc., 123 AD3d 525 [1st Dept 2014]). Accordingly, the judgment of the Supreme Court, New York County (James E. d’Auguste, J.), entered May 7, 2018, dismissing the action, should be affirmed, without costs. The appeal from the order of the same court and Justice, entered April 5, 2018, which denied plaintiffs’ motion for partial summary judgment as to liability on the Labor Law §240(1) claim, and granted defendants’ motion for summary judgment dismissing the complaint, should be dismissed, without costs, as subsumed in the appeal from the judgment. All concur except Manzanet-Daniels, and Moulton, JJ. who dissent in part in an Opinion by Moulton, JJ.
