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Colozzo v National Center Foundation, Inc.
2003 NY Slip Op 30052(U)
November 20, 2003
Supreme Court, New York County
Docket Number: 0600499/4992
Judge: Rosalyn H. Richter
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY: PART 24:
X
JOSEPH COLOZZO and DIANE COLOZZO,
Plaintiffs,
DECISION and ORDER
-against-                                                                                                 Index No.
Seq. No. 2
NATIONAL CENTER FOUNDATION, INC.,
MURRAY HILL PLACE, INC. and TISHMAN
CONSTRUCTION CORPORATION OF NEW YORK
X
Justice Rosalyn Richter:
present action was commenced by plaintiff Joseph Colozzo (“Colozzo”), and his wife
Diane Colozzo derivatively, for injuries he allegedly sustained on September 8, 1999 as a result of
falling off a 10 foot ladder. The plaintiff brings the present motion for partial summaryjudgment
on the issue of liability and for an immediate assessment of damages which precedes the liability trial
as between defendants National Center Foundation, Inc.                                                    Murray Hill Place, Inc. and
Construction Corporation of New York.
In moving for partial summary judgment on his Labor Law                                                   1) claim, the plaintiff
argues that the ladder failed to give him proper protection under the statute because it was not
secured, held or locked into place, the ladder had no safety feet, and no one was holding the ladder
at the bottom. The defendants argue that a factual issue exists as to whether the plaintiffs injuries
arose from his misuse of the ladder, because he failed to open the closed A-frame ladder that was
leaning against the wall.
Labor Law                                                                                                                                                                                         imposes absolute liability on owners and contractors for failing to
                                                                                                          provide proper protection to workers laboring under “unique gravity related hazards.”                                                                         v.
Co. ,9 2                                                                                                  909                                                                                     v.                                                                    Co. ,8 6




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487 (1 995). To prevail on a                                                                           1) action, the plaintiff is required to establish that the statute was
violated and that the violation was a proximate cause of his injury.  Id.  Once the plaintiff has
established that                                                                                       1) was violated and that the violation was a proximate cause of the plaintiffs
injury, “summary judgment resolving the issue of liability in plaintiffs favor is an appropriate
remedy.” Linney v. Consistory of Bellevue Reformed Church, 115                                         209 (3d Dept. 1985).
The Court grants the plaintiffs motion for summaryjudgment. According to the plaintiffs
deposition testimony, the plaintiff fell to the ground when the unsecured ladder he was descending
moved.  The plaintiffs testimony demonstrates as a matter of law that the ladder “was not so
constructed, placed and operated as to give proper protection” to the plaintiff. Smith v. Pergament
Enterprises, 271                                                                                                                                                                                               870 (3d Dept. 2000). There is no evidence that the ladder was anchored
                                                                                                       to anything, equipped with any securing device, or supported by a coworker. Such failure to secure
                                                                                                       a ladder to insure that it remains stable while the plaintiff is using it is a violation of Labor Law
See                                                                                                    et al. v. Museum                                                                                        Art, 260                                                                 271 (1st Dept. 1999);
v. Sony Corp.                                                                                          et al., 237                                                                                             201 (1st Dept. 1997); Schultze v. 585 West                                                            Street
Owners Corp. et al., 228                                                                               381 (1st Dept. 1996).
                                                                                                       The defendants’ contention that the plaintiff was negligent in using the closed ladder does
                                                                                                       not defeat plaintiffs summaryjudgment motion. The defendants do not challenge plaintiffs account
                                                                                                       of the fall, and there is no view of the evidence that supports a finding that the plaintiffs own
conduct was the sole proximate cause                                                                                                                                                                           injuries. Hernandez v.                                                   Sullivan Tenant Corp., 307
207 (1st Dept.                                                                                                                                                                                                 plaintiff established the defendants’ actions were a proximate
cause of the accident, plaintiffs act of failing to secure his safety harness would amount, at most,
to contributory negligence, which is not a defense to a                                                240 claim); Smith, 271                                                                                  at 872.
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The Court finds that the case                                                                              v.                                                                             307                                                                              156 (1st Dept.
which the defendants rely on, is distinguishable from the circumstances in this case.  In
the Court denied the plaintiffs motion for summary judgment on his                                         240 claim because
the plaintiff chose to place a ladder against a wall in a closed position at a slight angle without
speaking to his supervisor.  Here, the plaintiff testified that his supervisor, Tommy Diccone,
instructed him to descend the ladder, which was already placed in a closed position against the wall
when Mr. Diccone issued this instruction. Mr. Diccone had the authority to supervise and control
the work that the plaintiff was doing, and failed to direct someone to open and secure the ladder
before the plaintiff descended or to provide any safety devices. Thus, the inadequate securing of a
ladder was not due to the plaintiffs use of it. See Schultze v. 585 West 21   Street Owners Corp. ,
228                                                                                                        381 (1st Dept. 1996).
                                                                                                                                                                                          The defendants' reliance on the case of Blake v. Neighborhood Housing Services   York
City,                                                                                                      301                                                                            366 (1st Dept. 2003) is also misplaced. In Blake, the plaintiff testified that
the ladder which he selected and erected for work was not defective before he used it and that he did
not know what caused the ladder's sudden retraction. The Court held that this presented a factual
issue as to whether the plaintiffs injury was caused by an  inadequate ladder or was attributable to
plaintiffs use of it. Here, the plaintiff testified that he had not used the ladder before the accident,
that he was instructed to use the ladder which was already closed and positioned against the wall,
and that the ladder                                                                                        away from the wall as he descended it. Further, the plaintiff testified that
the ladder was not secured to the first floor in any fashion. Under these circumstances, no factual
issue exists as to the cause of the plaintiffs injury.
The Court denies                                                                                           request for an immediate assessment of damages to precede the
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trial. T he assessment of damages will be held in abeyance pending the outcome of the trial.
Accordingly, it is
ORDERED that the plaintiffs motion for partial summaryjudgment on his Labor Law                240
(1) claim is granted.
This constitutes the decision and order of the Court.
November 20,2003
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