SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

65 

CA 14-01132 

PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND WHALEN, JJ. 

 

JAMES ZIMMER, PLAINTIFF-RESPONDENT-APPELLANT, 

V MEMORANDUM AND ORDER

TOWN OF LANCASTER INDUSTRIAL DEVELOPMENT AGENCY, 

AMERICAN SALES COMPANY, INC. AND AMERICAN SALES 

COMPANY, LLC, DEFENDANTS-APPELLANTS-RESPONDENTS. 

 

DIXON & HAMILTON, LLP, GETZVILLE (DENNIS P. HAMILTON OF COUNSEL), FOR

DEFENDANTS-APPELLANTS-RESPONDENTS. 

DOLCE PANEPINTO, P.C., BUFFALO (SEAN E. COONEY OF COUNSEL), FOR

PLAINTIFF-RESPONDENT-APPELLANT. 

 

Appeal and cross appeal from an order of the Supreme Court, Erie

County (Frederick J. Marshall, J.), entered October 11, 2013. The

order granted plaintiff’s motion for partial summary judgment and

granted in part and denied in part defendants’ cross motion for

summary judgment. 

It is hereby ORDERED that the order so appealed from is 

unanimously modified on the law by granting those parts of the cross

motion seeking summary judgment dismissing the Labor Law § 200 and

common-law negligence causes of action and by denying that part of the

cross motion seeking summary judgment dismissing the Labor Law § 241

(6) cause of action insofar as it is based on the alleged violation of

12 NYCRR 23-1.21 (d) (2) and reinstating that cause of action to that

extent, and as modified the order is affirmed without costs. 

Memorandum: Plaintiff commenced this Labor Law and common-law

negligence action seeking damages for injuries he sustained while

attempting to repair a rooftop commercial heating and air conditioning

unit. Plaintiff’s wrist was fractured when the upper section of a

four-foot extension ladder fell and struck plaintiff while plaintiff

and a coworker were standing on the ground, attempting to set the

ladder in place. Although the ladder was equipped with automatic

positive acting locks to prevent and/or halt the uncontrolled

retraction of the upper extension, those devices were iced-over at the

time of plaintiff’s accident as a result of the ladder having been

stored outside the night before. Supreme Court granted plaintiff’s

motion for partial summary judgment on liability on the Labor Law §

240 (1) cause of action and granted only in part defendants’ cross

motion for summary judgment dismissing the complaint, dismissing the

Labor Law § 241 (6) cause of action. 
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CA 14-01132 

Contrary to defendants’ contention on their appeal, the evidence

established that plaintiff was injured by an elevation related risk

within the scope of Labor Law § 240 (1). Although the feet of the

lower section of the ladder were at the same level as plaintiff and

the upper extendable section fell only a short distance, plaintiff is

not precluded from recovery under section 240 (1) (see Wilinski v 334

E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 6-7). Defendants’

contention that plaintiff should have inspected the ladder “amounts,

at most, to contributory negligence, a defense inapplicable to a Labor

Law § 240 (1) [cause of action]” (Nacewicz v Roman Catholic Church of

the Holy Cross, 105 AD3d 402, 403). 

We agree with defendants, however, that the court erred in

denying that part of their cross motion with respect to the Labor Law

§ 200 and common-law negligence causes of action, and we therefore

modify the order accordingly. “It is settled law that where the

alleged defect or dangerous condition arises from the contractor’s

methods and the owner exercises no supervisory control over the

operation, no liability attaches to the owner under the common law or

under section 200 of the Labor Law” (Lombardi v Stout, 80 NY2d 290,

295; see Gielow v Rosa Coplon Home, 251 AD2d 970, 972, lv dismissed in

part and denied in part 92 NY2d 1042, rearg denied 93 NY2d 889). 

Here, defendants met their initial burden by establishing that

plaintiff’s accident resulted from the manner in which the work was

performed, not from any dangerous condition on the premises, and

defendants exercised no supervisory control over the work (see

Leathers v Zaepfel Dev. Co., Inc. [appeal No. 2], 121 AD3d 1500,

1503). Plaintiff failed to raise an issue of fact to defeat that part

of the cross motion (see generally Zuckerman v City of New York, 49

NY2d 557, 562). 

We conclude with respect to plaintiff’s cross appeal that the

court properly granted that part of defendants’ cross motion for

summary judgment dismissing the Labor Law § 241 (6) cause of action

insofar as it is based on the alleged violation of 12 NYCRR 23-1.21

(b) (3) (iv). Pursuant to that regulation, “[a] ladder shall not be

used . . . [i]f it has any flaw or defect of material that may cause

ladder failure.” Here, we conclude that the icing of the automatic

positive acting locks is not a flaw or defect of material within the

meaning of the regulation. We agree with plaintiff, however, that the

court erred in granting defendants’ cross motion with respect to the

section 241 (6) cause of action insofar as it is based on the alleged

violation of 12 NYCRR 23-1.21 (d) (2), and we therefore further modify

the order accordingly. That regulation requires that “[e]ach upper

section of any extension ladder when extended shall be locked in place

by two automatic positive acting locks” and, here, contrary to

defendants’ contention, they failed to establish that the regulation

is inapplicable to the facts of this case (see generally Rizzuto v

L.A. Wenger Contr. Co., 91 NY2d 343, 351; Forschner v Jucca Co., 63

AD3d 996, 998). 

Lastly, plaintiff’s contention that he should be granted partial

summary judgment on the Labor Law § 241 (6) cause of action insofar as

it is based on the alleged violation of 12 NYCRR 23-1.21 (d) (2) was
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CA 14-01132 

raised for the first time in his reply papers and thus is not properly

before us (see Turner v Canale, 15 AD3d 960, 961, lv denied 5 NY3d

702).

Entered: February 6, 2015 Frances E. Cafarell

Clerk of the Court