Fabrizi v. 1095 Avenue of Americas, L.L.C.

Chief Judge Lippman

(dissenting). It seems clear to me that plaintiff has established his entitlement to summary judgment by demonstrating that his gravity-related injury was proximately caused by the defendants’ failure to provide an adequate safety device. Therefore, I dissent.

Plaintiff, an electrician, was injured in the course of repositioning a “pencil box” that served as an access point for telecommunication wires. Plaintiff was assigned this task pursuant to a “change order” intended to remedy an error committed by his employer. Specifically, upon its original installation approximately a week earlier, the pencil box had been positioned in such a way that it threatened to obstruct part of the building infrastructure yet to be installed.

To accomplish the task, plaintiff disconnected the box from a structure known as a “Kindorf support,” which anchored the box to the floor and the wall, and also from two sections of conduit pipe running above and below the pencil box, respectively. After the pencil box was disassembled from its supports, a considerable length of galvanized steel conduit, weighing 60-80 pounds, was left hanging above plaintiff as he knelt below to drill. The conduit was connected to another section of pipe near the ceiling by a compression coupling, which is essentially a cylindrical metal sleeve that tightens around the ends of two pipes to secure them together. Next, plaintiff drilled holes in the concrete floor in preparation for relocating the Kindorf. When he commenced the drilling, the suspended conduit came loose from its coupling and plummeted to the floor, crushing plaintiffs right thumb.

Section 240 (1) of the Labor Law imposes absolute liability on certain contractors, owners and their agents when their failure *665to provide an adequate safety mechanism caused a worker’s injury in a gravity-related accident. Our recent precedent in this area makes it clear that, in determining whether section 240 (1) applies, “ ‘the dispositive inquiry . . . does not depend upon the precise characterization of the device employed’ ” (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 10 [2011], quoting Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). It follows that the availability of statutory protection here should not depend on whether couplings can be characterized as safety devices under section 240 (1), or whether they should be considered part of a building’s permanent infrastructure.

“ ‘Rather, the single decisive question is whether plaintiffs injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential’ ” (id. [emphasis omitted]). Accordingly, the crucial legal questions arising from the face of this record are whether the task of repositioning the pencil box entailed an elevation-related risk that triggered defendants’ duty to supply adequate safety devices, and whether the failure to do so caused the accident.

Clearly, plaintiff was exposed to a gravity-related hazard within the meaning of the statute. Kneeling on the floor to drill, he was situated several feet below a 60-to-80-pound segment of conduit pipe made of galvanized steel. The conduit was attached to the pipe above by only a compression coupling whose grip was inadequate to withstand the vibrations of drilling. “The elevation differential here involved cannot be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent” (Runner, 13 NY3d at 605).

As to the question of proximate cause, the record evidence shows that the absence of an effective safety device caused plaintiffs injury. It requires little imagination to conclude that a tool capable of stabilizing the conduit pipe—whether brace, clamp, coupling, or otherwise—would be precisely the sort of device contemplated by section 240 (1). Without such a device, however, the pipe was insufficiently secure and plaintiff incurred injury as a result. As the motion court aptly summarized, “the conduit was disconnected from the Kindorft ] support and only attached to the ceiling by a compression coupling, and because it fell, it was not secured as to give plaintiff proper protection” (Fabrizi v 1095 Ave. of the Americas, L.L.C., 2011 NY Slip Op 31529[U], *11 [Sup Ct, NY County 2011]).

*666By focusing myopically on whether couplings fall under the statute, the majority loses sight of defendants’ burden on summary judgment. To prevail, it is not enough for defendants to argue that a particular alternative device can be sensibly distinguished from those enumerated in the statute. Instead, they must demonstrate either the absence of a gravity-related risk or, where the risk posed by the elevation differential is readily apparent, a deficient causal nexus between the failure to provide a safety device and plaintiffs injury.

Defendants did raise a challenge with regard to causation in arguing that plaintiffs method of performing the work unnecessarily created the risk. According to defendants, as well as the dissent in the Appellate Division, plaintiff singlehandedly caused the accident by dismantling the pencil box prior to drilling holes in the floor. However, there was no evidence presented that this modus operandi constituted anything but standard procedure in the trade. Plaintiff made a prima facie showing that he had performed the same task four or five times in the course of his career and had routinely undertaken it in an identical manner. In opposition, defendants failed to raise a triable issue of fact as to whether plaintiffs own conduct was the proximate cause of the accident (see e.g. McCallister v 200 Park, L.P., 92 AD3d 927, 929 [2d Dept 2012]; Kempisty v 246 Spring St, LLC, 92 AD3d 474, 474-475 [1st Dept 2012]; cf. Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757, 759 [2008] [triable issue of fact as to whether plaintiff caused the accident where he was warned not to enter the accident área]).

In sum, defendants’ proof failed to rebut plaintiff’s prima facie showing that his injury resulted from the absence of a safety device capable of guarding against the gravity-related risk. Accordingly, I would grant summary judgment to plaintiff. In reaching a contrary result, the majority imposes an undue burden on plaintiff that serves only to frustrate the Labor Law’s salutary purpose of ensuring worker protection.

Judges Graffeo, Read and Smith concur with Judge Pigott; Chief Judge Lippman dissents in an opinion in which Judge Rivera concurs; Judge Abdus-Salaam taking no part.

On appeal by defendants 1095 Avenue of the Americas, L.L.C. and J.T. Magen Construction Company, Inc., order reversed, with costs, motion by those defendants for summary judgment dismissing the Labor Law § 240 (1) claim as against them *667granted and certified question answered in the negative. Appeal, insofar as taken by defendant Dechert, LLR dismissed, without costs, upon the ground that it is not a party aggrieved (CPLR 5511).