Kunkle v Robert Marini Bldrs.2013 NY Slip Op 30304(U)

February 11, 2013Sup Ct, New York CountyDocket Number: 3267/11Judge: Joseph C. Teresi

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STATE OF NEW YORKSUPREME COURT COUNTY OF ALBANY

KlRT KUNKLE and MICHELLE KUNKLE,

Plaintiffs,

-against-DECISION and ORDERINDEX NO. 3267-11RJI NO. 01-11-105713

ROBERT MARINI BUILDERS andLANDMARK DEVELOPMENT GROUP, LLC,

Defendants.Supreme Court Albany County All Purpose Term, January 25,2013

Assigned to Justice Joseph C. Teresi

APPEARANCES:Thorn, Gershon, Tymann and Bonanni, LLPAmanda Kuryluk, Esq.Attorneys for Plaintiffs5 Wembley CourtPO Box 15054Albany, New York 12212

Burke, Scolamiero, Mortati & Hurd, LLPMark Mitchell, Esq.Attorneys for Defendants7 Washington SquarePO Box 15085Albany, New York 12212

TERESI, J.:

On April 9, 20101, Kirt Kunkle (hereinafter "Kunkle") was working as a carpenter on a

residential construction project in Watervliet, New York (hereinafter "construction site"). Robert

1Although Plaintiffs' complaint states both "2010" and "2011" and their bill of particularsstates "2011," the depositions, affidavits and affirmations submitted herein all refer to "2010."No issue of fact is raised by such discrepancy, and the "2011" typographical error is disregarded.

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Marini Builders (hereinafter "Marini") was the general contractor for the project and the

construction site was owned by Landmark Development Group, LLC (hereinafter "Landmark")."

Kunkle, employed by one of the project's subcontractors, was working off of a step

ladder that day. He alleges that he was injured when the left side of the ladder sunk into the

ground, tipped over and caused him to fall. He commenced this action, with his wife

derivatively, to recover his damages. Issue was joined, discovery is complete and a trial date

certain is set (June 10,2013).

Plaintiffs now move for partial summary judgment on Kunkle's Labor Law §240(1)

claim. Defendants oppose the motion, and also move for summary judgment dismissing

Plaintiffs' complaint. Because Plaintiffs demonstrated Defendants' Labor Law §240(1) liability

as a matter of law, and no triable issue of fact was raised, Plaintiffs' motion is granted and

Defendants' is denied.

Considering Labor Law §240(1)·claims, the Appellate Division - Third Department has

"repeatedly held that the question of whether an elevation-related safety device provides the

statutorily mandated protection is resolved as a matter of law where the device collapses, slips or

otherwise fails to perform its function of supporting the worker." (Squires v Robert Marini

Builders Inc., 293 AD2d 808 [3d Dept 2002], quoting Beesimer v Albany Ave./Rte. 9 Realty,

Inc., 216 AD2d 853 [3d Dept 1995]; Dowling v McCloskey Community Services Corp., 45

AD3d 1232 [3d Dept 2007]). As such, Plaintiffs may sustain their initial burden on this motion

with "proof that [Kunkle's] ladder collapsed, slipped or otherwise failed." (Rosier v Stoeckeler,

101 AD3d 1310 [3d Dept 2012], quoting Georgia v Urbanski, 84 AD3d 1569 [3d Dept 2011]).

2 On this record these roles are explicitly conceded by Defendants.

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"Once the plaintiff makes a prima facie showing[,] the burden then shifts to the

defendant, who may defeat plaintiff s motion for summary judgment only if there is a plausible

view of the evidence-enough to raise a fact question-that there was no statutory violation and that

plaintiffs own acts or omissions were the sole cause of the accident." (Morin v. Machnick

Builders, Ltd., 4 AD3d 668 [3d Dept. 2004], quoting Blake v. Neighborhood Hous. Servs. of

N.Y. City, 1 NY3d 280,289 n.8 [2003][emphasis added]). "Such actions may include the failure

to use or the misuse of an otherwise adequate safety device." (Albert v Williams Lubricants,

Inc., 35 AD3d 1115, 1116 [3d Dept 2006]).

On this record, Plaintiffs made their prima facie showing. Plaintiffs submit Kunkle's

deposition testimony, which recounts his fall in detail. Kunkle stated that he was injured while

"helping pad a porch beam ... by nailing two by fours across the top of the beams." He was

working on an eight foot stepladder, using an air powered nail gun. He personally opened,

locked the sides and placed the stepladder before ascending it. Kunkle noticed that he was

placing the ladder on sand/dirt and, after determining that it would not sink anywhere by testing

it, began climbing. When he put his left foot on the third rung of the ladder, its left side sunk

into the ground. He fell with the ladder and was injured as a result. On such showing, Plaintiffs

met their prima facie burden by demonstrating that Kunkle's fall and injury were caused by his

ladder collapsing/slipping. (Morin v. Machnick Builders, Ltd., supra; Evans v Syracuse Model

Neighborhood Corp., 53 AD3d 1135, 1137 [4th Dept 2008]).

With the burden shifted, Defendants raised no material issue of fact. "It does not avail

defendants to argue that the manner in which plaintiff set up and stood on the ladder was the sole

cause of the accident, where there is no dispute that the ladder was unsecured and no other safety

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devices were provided." (Vega v Rotner Mgt. Corp., 40 AD3d 473,474 [1st Dept 2007]). The

placement and failure of the safety device constitute Defendants' Labor Law §240(1) violation.

(Morin v Machnick Builders, Ltd., supra; Klein v City of New York, 89 NY2d 833, 835 [1996];

Hall v Conway, 241 AD2d 592 [3d Dept 1997]). Because "the statutory violation has been

established as a proximate cause of the accident, plaintiffs alleged contributory negligence

becomes irrelevant." (Tzic v Kasampas, 93 AD3d 438, 439 [1st Dept 2012]). Defendants'

reliance on case law in which workers were injured when they tripped while using a Labor Law

§240(l) safety device are wholly misplaced, as there is no proof that Kunkle tripped. So too is

Defendants' reliance on cases in which the ladder did not slip or collapse, as it is uncontested that

the ladder Kunkle was using did. Moreover, no issue of fact is raised by Defendants' non-

ownership of the ladder or that it was not defective, because Defendants proffered no proof that

Kunkle failed to use a safety device provided or misused the ladder. (Morin v Machnick

Builders, Ltd., supra). As such, Defendants failed to raise an issue of fact that Kunkle was the

sole proximate cause of his fall.

Accordingly, Plaintiffs' motion for partial summary judgment is granted. "[I]nasmuch as

defendants are liable to plaintiff under Labor Law § 240(1) for the only damages that plaintiff can

recover, defendants' arguments concerning the validity of the other theories of liability contained

in the complaint are academic" and their motions for summary judgment dismissing the

complaint are denied. (Yost v Quartararo, 64 AD3d 1075 [3d Dept 2009], quoting Covey v

Iroquois Gas Transmission Sys., 218 AD2d 197,201 [3d Dept 1996], affd 89 NY2d 952 [1997];

Carchipulla v 6661 Broadway Partners, LLC, 95 AD3d 573 [1st Dept 2012]; Squires v Marini

Bldrs., 293 AD2d 808 [3d Dept 2002], Iv denied 99 NY2d 502 [2002]).

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This Decision and Order is being returned to the attorneys for Plaintiffs. A copy of this

Decision and Order and all other original papers submitted on this motion are being delivered to

the Albany County Clerk for filing. The signing of this Decision and Order shall not constitute

entry or filing under CPLR §2220. Counsel is not relieved from the applicable provision of that

section respecting filing, entry and notice of entry.

So Ordered.

Dated: February 1/ ,2013Albany, New York

PAPERS CONSIDERED:1. Notice of Motion, dated December 20,2012, Affidavit of Amanda Kuryluk, dated

December 20,2012, with attached Exhibits A-G.2. Affidavit of Mark Mitchell, dated January 16, 2013; Affidavit of Michael Marini, dated

January 16,2013; Affidavit of Emil Jubrey, dated January 15,2013.3. Affidavit of Amanda Kuryluk, dated January 23,2011.4. Notice of Motion, dated December 21,2012, Affidavit of Mark Mitchell, dated December

21,2012, with attached Exhibits A-F; Affidavit of Michael Marini, dated December 20,2012~

5. Affidavit of Amanda Kuryluk, dated January 17,2011.6. Affidavit of Mark Mitchell, dated January 24,2013; Affidavit of Emil Jubrey, dated

January 15,2013.

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