State of New York
Supreme Court : County of Monroe

- against -

Index No. 93/05735

ANDREW V. SIRACUSE, J.

Although this is a single action procedurally, plaintiff Ronald Briggs and his wife have sued two groups of defendants for injuries he claims were caused by two separate accidents. Both accidents occurred while Briggs was in the employ of Insulation Concepts, the third-party defendant, who did not appear in connection with these motions¹, and both are being prosecuted under common law negligence theories and under sections 200, 240, and 241 of the Labor Law; both involve injuries to Mr. Briggs's back. Other than that there are no factual elements common to the accidents, and the motions before the court are best treated individually.

Briggs v Bierworth

Defendant Bierworth & Bierworth is a developer/contractor and was building a subdivision house at 56 Kentucky Crossing in Greece, on property it owned at the time. Plaintiff, employed by subcontractor Insulation Concepts, was installing insulation in the basement; when he walked down the basement stairs to get to his work area the stairs collapsed and he injured himself. He continued to work for some time, and told his doctor that he had landed on his feet and the problems he had were resolved; however, plaintiff testified at deposition that he continued to have sporadic back pain even before the second accident.

This accident was unwitnessed and no report was prepared by plaintiff, his employer, or the contractor. It occurred some time in the summer of 1990. Plaintiff cannot supply a date, but argues from the fact that the building permit was issued on July 24, 1990, that his accident could not have happened before then, because work before the issuance of a building permit would be illegal.

Bierworth now moves for dismissal of the entire case on statute of limitations grounds, and in the alternative requests dismissal of the § 240(1) case because plaintiff fell from a permanent staircase and not from an elevated work area. Defendant also moves for dismissal on proximate cause grounds, asserting that plaintiff has not established any injury caused by the fall. Plaintiff opposes, and has also moves for partial summary judgment on liability.

It is true that plaintiff cannot say when the accident took place. Moreover, the references to the July 24 building permit are not conclusive; simply because work was improper before the issuance of a permit does not mean that it did not take place.

Although there is no more than suggestive evidence that the accident took place after June 9, 1990, which is the earliest date for the action to be timely, the burden is on the defendant to show as a matter of law that the action was commenced too late (Brush v Olivo, 81 AD2d 852). Since the defendants cannot show this as a matter of law, summary judgment on this issue cannot be granted.

Summary judgment is also improper on the proximate cause issue. Plaintiff testified to subsequent and consequential pain; he has through his testimony at EBT raised an issue of fact precluding summary judgment.

As for the § 240(1) case, however, defendant is entitled to judgment as a matter of law. This is not a § 240(1) issue; there is no elevated work site, only a permanent stairway that turned out to be less permanent than it was supposed to be. In this Department the Appellate Division has formulated the rule as clearly as one might like, in Monroe v New York State Elec. & Gas Corp ., 186 AD2d 1019: "Labor Law § 240(1) does not apply where plaintiff falls on a permanently installed stairway." Only once has the Fourth Department distinguished Monroe , noting in a case where the worker climbed a ladder affixed to a machine, "Unlike the situation in Monroe , plaintiff did not use the ladder to gain access from one part of the work site to another, but rather, used it to reach a valve as part of his work on the processor" (Kozlowski v Alcan Aluminum Corp ., 209 AD2d 930). The clear holding of these cases dooms plaintiff's § 240(1) cause of action.

Plaintiffs rely on a First Department case, Foufana v City of New York (211 AD2d 550), where the plaintiff fell from an old staircase that was discovered during construction and utilized by the workers:

Contrary to the IAS court's finding that it was merely a passageway from one place of work to another, the old concrete stairway unearthed during excavation of the site and thereafter left in place to be used by the workers to gain access from the bottom of the fourteen foot deep excavation to street level and specifically used by plaintiff to summon trucks at street level to pick up debris, was a "tool" used by the workers and constituted the functional equivalent of the "other devices" used in connection with elevation differentials and covered by Labor Law 240(1).

While it was "permanent" in one sense of the word, it was not permanent for purposes of the instant scenario. Indeed, it was happenstance that the stairway was uncovered while the pit was being dug. Instead of demolishing it upon discovery, it was utilized by the workers and was demolished after the work was done. Obviously this decision was made to enable the workers to use the staircase only for purposes of the excavation. As such, the staircase was effectively furnished and operated by defendants within the meaning of the statute. Accordingly, the staircase's "life" is analogous to a temporary structure used only for the excavation as opposed to a permanent structure. The fact that this staircase was many years old and was originally a permanent structure does not preclude its consideration as the functional equivalent of "other devices" for purposes of 240(1) (cf., Wescott v. Shear , 161 AD2d 925; Cliquennoi v. Michaels Group , 178 AD2d 839). Notably, the staircase was used much the same as the ladder that was provided at the worksite. It cannot be seriously argued that had plaintiff fallen from the ladder, he would not be covered by 240(1).

Briggs v Hoak & Delduca

This accident occurred on February 7, 1991, at a house owned by defendant Delduca (it was to be her and her husband's residence) that was being remodeled by contractor Henry Hoak. Briggs went to the house to install ceiling insulation. Although there was access to the house through a temporary stairway in the garage, Briggs was unaware of this. He saw a plank leading from ground level to a deck, and a door from the house to the deck. "Presuming that the inclined plank had been provided to access the only obvious entry into the residence" (Briggs's Memorandum of Law), he took a step onto the plank and it turned over on him, dropping him to the ground. He had taken only one step at this point. The end of the plank was only 3 - 4 inches wide at ground level; otherwise it was 10-12 inches wide.

At oral argument the plaintiffs' counsel stated that a stipulation of discontinuance as to Mrs. Delduca was being circulated; if one were not the court would have granted her motion to dismiss the complaint as against her, for she falls squarely within the Labor Law's exception relieving from liability "owners of one and two-family dwellings who contract for but do not direct or control the work".

In addition, defendant Hoak's motion to dismiss the § 240(1) cause of action should be granted. Defendant claims that the plank was not an elevated work site and that the elevation hazard that resulted in the alleged injury was de minimis. Plaintiff, in return, claims that the narrowness of the plank rendered it unsafe for the purpose of ingress and egress, and that this alone should support recovery under 240(1). At oral argument he denied any knowledge of specific height requirements under that section.

While no specific elevation standards are written into section 240(1), that section's protection has been extended to plaintiffs only when their injuries are caused by extraordinary gravity-related dangers. Here the plaintiff had taken one step when he fell. He could not have been more than a few inches off the ground. His injuries did not arise from an elevation-related hazard that falls within the purview of 240(1).

Defendant Hoak, unlike Bierworth, has also moved for summary judgment on plaintiffs' section 200 and 241(6) causes of action. He admits that 12 NYCRR 23-1.11 and 23-1.22 are specific enough to cover the case, and thus would support a § 241(6) claim; these Industrial Code sections deal with the size of construction lumber, its freedom from defects, and the width of ramps used by workers and others. Nonetheless, he argues that there is no evidence of negligence in the placing or use of the plank and no showing of actual or constructive notice. Hoak testified at EBT that he never knew that workers were using the plank. Defendant further claims that Briggs's own admission that the narrowness of the plank was patent and obvious is enough to destroy his claim.

This is a negligence issue only, and summary judgment is rarely appropriate in negligence issues. However, cases arising out of dangerous conditions such as the plank must be based upon notice to the defendant, actual or constructive; and in a summary judgment posture the plaintiff must establish one or the other (see Winecki v West Seneca Post 8113, Inc. , 227 AD2d 978, and cases cited therein ). Since Hoak testified that he had no notice that the plank was being used, "defendant met its initial burden of showing that it did not have actual notice of the alleged dangerous condition, and *** plaintiff failed to raise an issue of fact in response to that proof (Winecki, supra ). As for constructive notice, plaintiffs have not shown how long the plank was in use; as in the case of a spill on the floor, "[t]here is *** no basis to conclude that the *** [dangerous condition existed for] a sufficient length of time that defendant, in the exercise of due care, should have known of and corrected the condition"(Winecki, supra ). Thus, the complaint must be dismissed against Hoak in its entirety.

Defendant Bierworth's motion to dismiss as to the section 240(1) cause of action is granted; his motion is otherwise denied without prejudice. Defendant Delduca's motion is granted if it is not rendered academic by the stipulation of discontinuance. Defendant Hoak's motion to dismiss the complaint is granted, and plaintiffs' cross-motions are denied. Counsel for Hoak may prepare the order, with a single bill of costs.

DATED: Rochester, New York

November 13, 1996

Andrew V. Siracuse, J.S.C.

Note 1. It is not necessary at this time, then, to consider the impact the new amendments to the Workers' Compensation Law and other statutes (L 1996, ch 635) might have on the third-party action.

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