Ames v. Norstar Building Corp.

Gorski and Lawton, JJ. (dissenting in part).

We respectfully dissent in part. Contrary to the majority, we believe that defendants’ failure to make a prima facie showing of entitle*1018ment to judgment as a matter of law with respect to the Labor Law § 240 (1) claim requires denial of that part of defendants’ motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Neither do we concur with the conclusion of the majority that the accident of Leigh Ames (plaintiff) “is not the type of accident covered by [Labor Law §] 240 (1).” There is no dispute that plaintiff was a construction worker working at a construction site at the time of the alleged accident, and as such plaintiff is entitled to the protection of section 240 (1) (see generally Misseritti v Mark IV Constr. Co., 86 NY2d 487, 490-491 [1995], rearg denied 87 NY2d 969 [1996]).

Plaintiff alleges that his duties required him to work at an elevated height and that, as he was attempting to gain access to his work site, he fell and suffered severe injuries. Although the majority candidly acknowledges that “some of the devices enumerated in section 240 (1) are for the use or ‘protection of persons in gaining access to . . . sites where elevation poses a risk,’ ” it denies liability in this case by concluding as a matter of law that the elevated threshold of a doorway to the first floor of the building is not an elevated work site, likening it to the bed of a truck. The majority’s reasoning does not withstand historical scrutiny with prior decisions of this Court (see Paul v Ryan Homes, 5 AD3d 58, 61 [2004]; Reisch v Amadori Constr. Co., 273 AD2d 855, 856 [2000]; Szopinski v MJ Mech. Servs., 217 AD2d 906, 906-907 [1995], appeals dismissed 87 NY2d 861 [1995]) and other courts (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 513-514 [1991]; Medina v MSDW 140 Broadway Prop., L.L.C., 13 AD3d 67 [2004]; Priestly v Montefiore Med. Center/Einstein Med. Ctr., 10 AD3d 493, 494 [2004]; Crimi v Neves Assoc., 306 AD2d 152, 153 [2003]; Wescott v Shear, 161 AD2d 925 [1990], appeal dismissed 76 NY2d 846 [1990]). While the foregoing cases dealt primarily with defective ladders that led to work sites, it defies logic to hold in this case as a matter of law that no violation of Labor Law § 240 (1) exists for the failure to provide any ladder or other suitable alternate device as required to gain safe access to a work site (see Ewing v ADF Constr. Corp., 16 AD3d 1085, 1086 [2005]).

Defendants’ moving papers failed to establish as a matter of law that the height differential between the ground and the threshold of the door did not require a ladder or other suitable alternate device from which plaintiff could gain safe access to the work site. Likewise, defendants’ moving papers failed to establish as a matter of law that ladders or suitable alternate methods of access were available to plaintiff and that plaintiffs *1019failure to employ those alternate methods was the sole cause of plaintiff’s injury (cf. Montgomery v Federal Express Corp., 4 NY3d 805 [2005]). Consequently, defendants are not entitled to summary judgment dismissing plaintiffs’ Labor Law § 240 (1) claim, and we would modify the order accordingly. In all other respects, we concur with the majority. Present—Hurlbutt, J.R, Scudder, Gorski, Pine and Lawton, JJ.