SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

921 

CA 15-00183 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ. 

 

JESSE FLADD, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

INSTALLED BUILDING PRODUCTS, LLC, ET AL., 

DEFENDANTS, 

MORRELL BUILDERS, INC., AND S&J MORRELL, INC., 

DEFENDANTS-APPELLANTS. 

 

RUPP BAASE PFALZGRAF CUNNINGHAM LLC, ROCHESTER (MATTHEW C. LENAHAN OF

COUNSEL), FOR DEFENDANTS-APPELLANTS. 

CELLINO & BARNES, P.C., ROCHESTER (RICHARD P. AMICO OF COUNSEL), FOR

PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Monroe County (William

P. Polito, J.), entered August 13, 2014. The order denied in part the

motion of defendants Morrell Builders, Inc. and S&J Morrell, Inc., for

summary judgment, and granted in part plaintiff’s cross motion for

partial summary judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by denying the cross motion in its

entirety 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 allegedly sustained

while he was installing spray foam insulation inside a garage under

construction in a residential development owned by Morrell Builders,

Inc. and S&J Morrell, Inc. (defendants). According to plaintiff,

while standing on the third or fourth rung of a 10-foot A-frame

ladder, he was struck in the upper rib cage area by a garage door that

was suddenly opened by a coworker. The garage door was 16 feet wide

and 7 feet high, and the floor of the garage was unfinished and

consisted of “crush and run” gravel or pea stone. The ladder was

placed on that surface by plaintiff’s supervisor, and plaintiff

contends that the surface was unstable and inappropriate for ladder

footing. Plaintiff alleges that, when he was struck by the garage

door, the ladder became more “wobbly” and he injured his back in

attempting to steady the ladder in order to prevent himself from

falling. 

Defendants moved for summary judgment dismissing the complaint

against them, and plaintiff cross-moved for partial summary judgment
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on liability on the Labor Law § 240 (1) cause of action. Supreme

Court denied defendants’ motion except with respect to Labor Law § 200

and common-law negligence, which plaintiff did not oppose, and granted

plaintiff’s cross motion in part, determining that there was a

violation of Labor Law § 240 (1) that was a proximate cause of the

accident, but there was an issue of fact whether the accident was a

proximate cause of plaintiff’s alleged injuries. We conclude that the

court properly denied those parts of defendants’ motion with respect

to Labor Law §§ 240 (1) and 241 (6), but we agree with defendants that

the court should have denied plaintiff’s cross motion in its entirety. 

We therefore modify the order accordingly.

Initially, we agree with plaintiff that “[t]he application of

section 240 (1) does not hinge on whether the worker actually hit the

ground” (Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d 974, 978). 

“Rather, that section equally applies where the force of gravity

requires the worker to act to prevent himself or herself from falling

from an elevated worksite” (Peters v Kissling Interests, Inc., 63 AD3d

1519, 1520, lv denied 13 NY3d 903). We likewise reject defendants’

contention that they were entitled to summary judgment dismissing the

Labor Law § 240 (1) cause of action on the ground that the accident

involved the usual and ordinary dangers of a construction site and

thus that section does not apply here (see e.g. Riffo-Velozo v Village

of Scarsdale, 68 AD3d 839, 840-841; Montalvo v J. Petrocelli Constr.,

Inc., 8 AD3d 173, 173; see generally Misseritti v Mark IV Constr. Co.,

86 NY2d 487, 491, rearg denied 87 NY2d 969). 

Nevertheless, we agree with defendants’ alternative contention

that there are issues of fact with respect to how the accident

occurred and whether the ladder was “ ‘placed and operated as to give

proper protection’ ” to plaintiff pursuant to Labor Law § 240 (1)

(Avendano v Sazerac, Inc., 248 AD2d 340, 341), particularly in light

of the various inconsistencies in the record as to how the accident

occurred. Here, plaintiff testified at his deposition that the ladder

was placed “about ten feet” from the garage door opening. Defendants

submitted the affidavit of an engineering expert who concluded based

on, inter alia, his personal examination and replication of the

accident conditions that the accident could not have happened as

plaintiff alleges. According to defendants’ expert, inasmuch as the

garage door was only 7 feet high, it could not have struck plaintiff

when he was situated on a ladder a distance of 10 feet from the door

opening. Defendants’ expert also opined that “crush and run” gravel

or pea stone is an appropriate and safe surface upon which to place a

10-foot A-frame ladder. We further note that plaintiff also testified

at his deposition that, when he was on the ladder, his feet were

approximately 8 to 10 feet off the ground and his head was in between

rafters that were 16 feet high. 

We reject defendants’ further contention that the court erred in

denying that part of their motion for summary judgment dismissing the

Labor Law § 241 (6) cause of action. We note that, with the exception

of 12 NYCRR 23-1.21, plaintiff has abandoned any reliance on the

various provisions of the Industrial Code and the Code of Federal
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CA 15-00183 

Regulations cited in his bill of particulars by failing to address

them either in the motion court or on appeal (see Cardenas v One State

St., LLC, 68 AD3d 436, 438). Pursuant to 12 NYCRR 23-1.21 (b) (4)

(ii), “[s]lippery surfaces and insecure objects such as bricks and

boxes shall not be used as ladder footings” and, pursuant to 12 NYCRR

23-1.21 (e) (3), “[s]tanding stepladders shall be used only on firm,

level footings.” In addition, 12 NYCRR 23-1.21 (b) (9) requires that

ladders “shall not be placed in door openings unless the doors are

securely fastened open, closed and locked or otherwise guarded against

swinging.” We agree with plaintiff that defendants failed to

establish as a matter of law that those provisions of the regulation

are not applicable to the facts of this case (see Whalen v ExxonMobil

Oil Corp., 50 AD3d 1553, 1554; Hart v Turner Constr. Co., 30 AD3d 213,

214; Losurdo v Skyline Assoc., L.P., 24 AD3d 1235, 1237), and we

further agree with plaintiff that there are issues of fact concerning

how the accident happened and whether the regulation was violated (see

generally Buhr v Concord Sq. Homes Assoc., Inc., 126 AD3d 1533, 1534-

1535). 

Entered: December 31, 2015 Frances E. Cafarell

Clerk of the Court