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In this action for violations of Labor Law 240 (1), 241 (6) and 200, plaintiff, working as a roofer, suffered severe injuries on October 18, 2002, after he fell from the roof at the Administration Building of Westchester Community College, Valhalla, New York. Defendant [*2]Koko was the general contractor and third-party defendant M.J. Construction, Koko's subcontractor for roof alterations, employed plaintiff. Plaintiff moves, pursuant to CPLR 3212, for: partial summary judgment on liability against defendant on his Labor Law 240 (1) cause of action; severing the third-party action from the main action; and, assigning the case for an immediate trial by jury on the issue of damages.
According to plaintiff's deposition [exhibit E of motion] and his affidavit, attached to the motion, plaintiff and co-workers had removed the old roof surface and insulation and then installed new insulation and a new roof surface. Before removing the old roof, plaintiff and co-workers had removed the metal flashing around the edge of the roof, storing the flashing until the rest of the roofing work was finished. At the time of the accident, plaintiff was assigned the task of reattaching the old flashing around the edge of the roof at the top of the building, by hammering nails through the flashing to affix it to the edge of the roof at the top of the building. The roof was flat, with no parapets or railings, and no scaffolding was provided to plaintiff or co-workers to stand. Further, no harness and lifeline were provided to prevent plaintiff from falling to the ground from the rooftop.
In a subsequent case, Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 (1993), the Court held, at 501, that " Labor Law 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person." In Misseritti v. Mark IV Constr. Co. Inc., 86 NY2d 487, 491 (1995), the Court instructed that, "in recognition of the exceptionally dangerous conditions posed by elevation differentials at work sites that section 240 (1) prescribes safety precautions for workers laboring under unique gravity-related hazards (see Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, at 501 . . . )." In the instant case, no safety precautions whatsoever were provided to [*4]plaintiff.
In cases similar to the instant action, the Appellate Division, Second Department affirmed summary judgment for plaintiffs under Labor Law 240 (1). Plaintiff, in Smith v Xaverian High School, 270 AD2d 246 (2000), was not provided with any safety equipment and fell from a roof. The Court held, at 247 that:
of Labor Law 240 (1) by [the general contractor].In Danielewski v Kenyon Realty Co., LLC, 2 AD3d 666 (2003), plaintiff fell 12 feet from a mechanical roof to the main roof surface, while replacing a water tank on a building's roof. The Court observed, at 667, that there "was no rail or barricade at the perimeter of the mechanical room roof, and no lifelines, safety harnesses, or safety nets were present anywhere on the work site." See Gardner v New York City Transit Authority, 282 AD2d 430 (2001); Romero v John's Fruits and Vegetables, Inc., ___ AD3d ___, 2005 NY Slip Op 08301 (November 7, 2005).In opposition to the motion, defendant presents the affidavit of Miroslaw Fadrowski [exhibit A of supplemental affirmation in opposition], plaintiff's employer and owner of third-party defendant M.J. Construction. The Fadrowski affidavit is replete with conclusory statements. In paragraph 12, Mr. Fadrowski claims that: defendant Koko was "100% careless and negligent because, among others, it did not provide certain safety measures as required by pertinent laws and regulations and as reasonable required under the circumstances"; Koko had the exclusive duty to provide a safe construction site; M.J. had no control over the construction site; and, plaintiff was "100% careless and negligent and contributed to the accident by sliding on the roof instead of using a ladder that was available . . ." Mr. Fadrowski ignores the specific holdings of Zimmer and its progeny, namely, that a contractor is liable when there is failure to provide any safety devices to workers faced with gravity related hazards.
To quote the above affirmation, the use of this affidavit, previously held by this Court to lack any merit, to oppose that branch of plaintiff's instant motion for summary judgment on his Labor Law 240 (1) cause of action fails "to show any respect for this Court." In his affidavit, Mr. Fadrowski never claims to have been present at the work site and fails to present any evidence, other than his conclusory statement, that a ladder was available to plaintiff. This bald allegation fails to defeat plaintiff's Labor Law 240 (1) partial summary judgment motion on liability. In Orellana v American Airlines, 300 AD2d 638 (2002), a plaintiff roofer was injured after he fell from the roof of an American Airlines building at La Guardia Airport. Plaintiff testified, in his deposition, that defendants failed to provide him with a ladder or any other safety devices. The Orellana Court held, at 639, that the "mere presence of ladders somewhere at the work site does not establish that such devices were so placed as to give the proper protection required by the statute."
With respect to plaintiff's request for an immediate trial on damages, CPLR 3212 (c) provides that "[I]f it appears that the only triable issues of fact arising on a motion for summary judgment relate to the amount or extent of damages . . . the court may, when appropriate for the expeditious disposition of the controversy, order an immediate trial of such issues of fact raised by the motion . . ." This case still has outstanding liability issue on the Labor Law 200 and 241 (6) claims. Thus, with unresolved liability issues I cannot grant an immediate trial on damages. However, the reality of Kings County Supreme Court Civil Term is that barring any additional and unforseen motion practice this case will come to trial in only a matter of months. With the filing of a certificate of readiness and note of issue, and the instant case having a standards and goals date of March 2, 2006, it should soon appear on the JCP 1 calendar (Jury CoordinatingPart - Kings County Supreme Court Civil Term's trial assignment part). Professor David Siegel, in his Practice Commentaries (McKinney's Cons Laws of NY, Book 7B, CPLR 3212:25), aptly [*7]observed, "in counties with heavy calendar congestion [Kings County surely qualifies] the word 'immediate' translates into 'reasonably quickly.'"
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