Miglionico v. Bovis Lend Lease, Inc.

*562Order, Supreme Court, New York County (Debra A. James, J.), entered May 2, 2007, which granted plaintiff’s motion for summary judgment as to liability on his Labor Law § 240 (1) cause of action, affirmed, without costs.

In August of 2002, plaintiff was employed as a journeyman carpenter by Sorbara Construction, Inc. at the AOL/Time Warner Center construction site. Defendants Columbus Centre and The Related Companies were the owners of the premises and defendant Bovis Lend Lease was the general contractor. On the morning of August 8, plaintiff was working on the 39th floor with another carpenter, Christopher Morelli, clamping perimeter columns. That process involves placing metal clamps around wooden column forms so that they do not collapse when they are filled with cement. The clamps, each weighing approximately 20 to 30 pounds, are placed at 10- to 16-inch intervals from the bottom to the top of the form.

In order to reach the upper portions of the column, plaintiff and Morelli stood on the clamps that they had already secured. Near the middle of the form, plaintiff attempted to hand a clamp around the form to Morelli and fell to a wooden platform five stories below, sustaining serious injuries. Plaintiff and his partner were not wearing harnesses or using any other safety devices.

Plaintiff commenced this action asserting claims under Labor Law § 240 (1), § 241 (6) and § 200. He moved for partial summary judgment on his section 240 (1) claim, solely on the issue of liability. In support of the motion, plaintiffs expert provided an affidavit stating that defendants’ failure to provide plaintiff with safe elevation devices or personal fall protection “was a departure from good and accepted construction safety standards and a substantial factor in causing this accident.” In addition to the failure to provide a harness, lanyard, perimeter protection (netting or guardrails) or a secured ladder or scaffold, plaintiffs expert opined, “Defendants had a non-delegable duty to provide Mr. Miglionico with ... an appropriately 5,000 pound tested anchorage point. This accident would not have occurred had these devices, which the Defendants were obligated to provide, [been] in fact provided.”

The expert opinion was supported by the deposition testimony of plaintiffs coworkers and Bovis’s Site Safety Plan for the Time Warner project. Specifically, the safety manual states that *563“[l]anyards and vertical lifelines shall have a minimum breaking strength of 5000 pounds” and that the anchorage points “for fall arrest devices are to be capable of supporting at least 5000 pounds per employee.” In addition, Bovis’s incident investigation report lists the primary cause of the accident as “[n]o fall protection.”

Another carpenter on the Time Warner site, Robert Ramirez, testified at his deposition that he was not required to attend a safety class before he started work clamping columns and that the carpenters at this job site routinely did not wear harnesses. He further stated that, even if they did wear harnesses, there was no anchor point to which a harness could be attached. Specifically, he noted that there was neither a cable nor an eyebolt on the 39th floor to which the harness could have been fastened.

Likewise, Morelli testified that he was never provided with any type of harness or lifeline and that there was no perimeter protection on the 39th floor. Morelli also stated that there was no adequate place to which the carpenters could anchor themselves had they been wearing harnesses. Morelli testified that they were working on a “temporary makeshift floor” that was in the process of being built and that there was not any structure or item of sufficient stability to which they could anchor that would hold the necessary 5,000 pounds.

In opposition, defendants produced their own expert and several fact witnesses. Defendants’ expert, Howard Edelson, stated that Sorbara provided fall protection devices to all its employees, and site managers for both Sorbara and Bovis instructed the employees to tie off to column rebars. Notably, while Edelson opined that plaintiffs accident was not caused by the violation of Labor Law § 240 (1), nowhere does he state that the accident would have been prevented if plaintiff had properly used the safety equipment that was allegedly provided by the employer or if he had tied off to the column rebars. Rather, he stated only that “there is no causation between the absence of [safety] railing and the plaintiffs fall.”

Defendants also provided the testimony of several fact witnesses. Site safety manager Michael Tierney testified that, in general, a worker could have attached a harness to anchor points such as a hook in the floor or a cable around the column. He was unfamiliar with the condition of the 39th floor at the time of the accident and could not remember if there was a hook in that floor at any point. He also stated that the workers could have attached harnesses to the column they were working on or that they could have built a scaffold. Site safety manager *564Robert Wright also testified at his deposition that “[t]here is always an anchorage point.” However, he could not remember any specific anchorage points on the 39th floor. He did state that the appropriate anchorage point would have been the horizontal support beams located behind the columns.

Defendants also provided several affidavits from other employees at the site, stating that all employees were provided with harnesses and other appropriate safety equipment, that safety devices were kept on each floor, and that both an initial safety orientation for the project and weekly safety meetings were held.

Supreme Court granted plaintiffs motion for summary judgment on the issue of liability. The court found that plaintiff established a prima facie case that defendants’ failure to provide him with safety devices caused his injuries and that defendants failed to raise an issue of fact whether plaintiff had been provided with any safety devices or safety training.

The function of Labor Law § 240 (1) “is to protect workers and to impose the responsibility for safety practices on those best situated to bear that responsibility” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]). In addition, the Court of Appeals has observed that “the statute is to be construed as liberally as may be for the accomplishment of the purpose for which it was . . . framed” (id. [citations and internal quotation marks omitted]). In order for liability to be imposed under this section, the owner or contractor must fail to provide appropriate safety devices, and that lapse must be the proximate cause of plaintiff’s injuries (Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006]). Conversely, if the worker’s own actions constitute the sole proximate cause of his or her injuries, the owner or contractor will not be held liable under the statute (id.).

Here, as the dissent points out, there is a significant factual dispute as to whether proper fall protection devices either were available on site or were provided directly to plaintiff. However, this factual dispute is not determinative since defendants failed to rebut plaintiffs expert proof establishing that, even if harnesses were provided, there was not an appropriate anchorage point to which they could have been attached. The statute requires defendants to provide safety devices that will “give proper protection” to the employee (Labor Law § 240 [1]). Even assuming the harnesses had been provided, the only conclusion supported by this record is that they would not have provided the necessary protection.

Contrary to the dissent’s argument, this is not a determina*565tion that plaintiffs evidence is worthy of belief and defendants’ is not. Rather, we conclude that defendants’ evidence does not raise an issue of fact whether the harnesses, even if present, were adequate safety devices. Plaintiffs expert opined that the accident would not have occurred if plaintiff had been provided with a 5,000-pound anchorage point. Bovis’s site safety plan and plaintiffs fact witnesses supported her conclusion. In response, defendants failed to come forward with evidence to rebut plaintiffs expert’s conclusion, as they were bound to do in order to create an issue of fact under well-settled principles of summary judgment. Notably, in none of the affidavits did defendants’ witnesses indicate that there was an adequate 5,000-pound anchorage point available to plaintiff while he was performing the work in question. This is information that is available to defendants, if it exists, and that they would be expected to provide in response to a motion for summary judgment.

Defendants’ fact witnesses were not familiar with the specifics of the 39th floor and did not testify that the objects they suggested as anchor points had sufficient weight-bearing capability to have been useful. Significantly, defendant’s expert failed to take issue either with plaintiffs expert opinion that an appropriate anchorage point must be capable of holding 5,000 pounds or that there was no such anchorage point on the 39th floor. Further, although Edelson stated that workers were instructed to tie off to the column rebars, he did not opine as to whether that procedure would have provided adequate protection for a falling worker.

In the absence of some proof that a harness, if provided, would have actually furnished adequate protection, defendants failed to raise an issue of fact whether plaintiffs actions were the sole proximate cause of his injuries. Concur—Lippman, P.J., Williams and Catterson, JJ.