FRONCE, RICHARD J. v. PORT BYRON TELEPHONE COMPANY, INC. ( 2015 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1240
    CA 15-00716
    PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.
    RICHARD J. FRONCE,
    PLAINTIFF-APPELLANT-RESPONDENT,
    V                             MEMORANDUM AND ORDER
    PORT BYRON TELEPHONE COMPANY, INC.,
    C/O CORPORATION SERVICE COMPANY, REGISTERED
    AGENT AND TELEPHONE AND DATA SYSTEMS, INC.,
    AND TDS TELECOMMUNICATIONS CORPORATION,
    DEFENDANTS-RESPONDENTS-APPELLANTS.
    MICHAELS & SMOLAK, P.C., AUBURN (MICHAEL G. BERSANI OF COUNSEL), FOR
    PLAINTIFF-APPELLANT-RESPONDENT.
    COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (DONALD S. DIBENEDETTO OF
    COUNSEL), FOR DEFENDANTS-RESPONDENTS-APPELLANTS.
    Appeal and cross appeal from an order of the Supreme Court,
    Cayuga County (Thomas G. Leone, A.J.), entered December 12, 2014 in a
    personal injury action. The order denied defendants’ motion for
    summary judgment and denied 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 granting plaintiff’s cross motion,
    and as modified the order is affirmed without costs.
    Memorandum: Plaintiff commenced this Labor Law action seeking
    damages for injuries he sustained when he fell from an aerial bucket
    attached to a boom on a bucket truck while attempting to remove cables
    from a utility pole on defendants’ property. Plaintiff appeals and
    defendants cross-appeal from an order that denied defendants’ motion
    for summary judgment dismissing the complaint and denied plaintiff’s
    cross motion for partial summary judgment on the issue of liability
    with respect to the section 240 (1) cause of action. We agree with
    plaintiff that defendants are owners within the meaning of the Labor
    Law. “[E]ven under a liberal construction of section 240 (1),
    ownership of the premises where the accident occurred, standing alone,
    is insufficient to impose liability under section 240 (1) on an
    out-of-possession property owner who does not contract for the
    injury-producing work. Rather, a prerequisite to the imposition of
    liability upon such an owner is ‘some nexus between the owner and the
    worker, whether by a lease agreement or grant of an easement, or other
    property interest’ ” (Custer v Jordan, 107 AD3d 1555, 1557, quoting
    -2-                          1240
    CA 15-00716
    Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 51; see Morton v
    State of New York, 15 NY3d 50, 56). Here, there is a nexus between
    defendants and plaintiff inasmuch as plaintiff was employed by a
    successor in interest to a corporation to which defendants had granted
    an easement allowing the corporation and its successors to maintain
    its utility poles and cables on defendants’ property (see Celestine v
    City of New York, 86 AD2d 592, 593, affd 59 NY2d 938; cf. Abbatiello,
    3 NY3d at 51). Inasmuch as defendants, as grantors of the easement,
    remained the fee owner of the property, it is irrelevant that
    defendants did not own the utility pole and cables that were the
    subject of plaintiff’s work at the time of the accident (see Williams
    v LeChase, 15 AD3d 988, 989, lv dismissed in part and denied in part 5
    NY3d 730; Hilbert v Sahlen Packing Co., 267 AD2d 940, 940; see
    generally Gordon v Eastern Ry. Supply, 82 NY2d 555, 560).
    We further agree with plaintiff that Supreme Court erred in
    denying his cross motion for partial summary judgment on the issue of
    liability under Labor Law § 240 (1), and we therefore modify the order
    accordingly. There is no dispute that plaintiff met his initial
    burden on the cross motion by demonstrating that he was engaged in an
    activity covered by the statute, and that his accident involved an
    elevation-related hazard against which the statute was intended to
    protect (see Hilbert, 267 AD2d at 940-941). Plaintiff further
    “established the requisite causal link between his injuries and the
    violation of defendants’ nondelegable duty to ensure that the [aerial
    bucket] was ‘so . . . placed and operated as to give proper
    protection’ to plaintiff” (Ward v Cedar Key Assoc., L.P., 13 AD3d
    1098, 1098; see Thome v Benchmark Main Tr. Assoc., LLC, 86 AD3d 938,
    939). In opposition to the motion, defendants failed to raise a
    triable issue of fact whether plaintiff’s “own conduct, rather than
    any violation of Labor Law § 240 (1), was the sole proximate cause of
    his accident” (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35,
    40). Contrary to defendants’ contention, inasmuch as plaintiff was
    using the aerial bucket to reach the utility pole and cables in the
    manner directed and approved by his supervisor, it cannot be said that
    plaintiff’s conduct in using a winch line and pulley to pull the pole
    closer was the sole proximate cause of the accident (see Kuhn v
    Camelot Assn., Inc. [appeal No. 2], 82 AD3d 1704, 1706; see also
    Fernandez v BBD Developers, LLC, 103 AD3d 554, 555-556). Moreover,
    inasmuch as defendants’ statutory violation was a proximate cause of
    the accident, we conclude that any failure by plaintiff to properly
    wear a safety harness and lanyard would merely constitute comparative
    negligence, which is not a defense under Labor Law § 240 (1) (see
    Garzon v Viola, 124 AD3d 715, 716-717; see generally Blake v
    Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289-290).
    Entered:   December 23, 2015                    Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CA 15-00716

Filed Date: 12/23/2015

Precedential Status: Precedential

Modified Date: 10/7/2016