author: Chief Judge DiFiore. Rivera, J.

text:
    [74 NE3d 307, 52 NYS3d 68]
    Thomas J. O’Brien, Jr., Respondent, v Port Authority of New York and New Jersey et al., Appellants, et al., Defendants.
    Argued February 14, 2017;
    decided March 30, 2017

      POINTS OF COUNSEL

      Shaub, Ahmuty, Citrin & Spratt LLP, Lake Success (Christopher Simone, Robert M. Ortiz and Gerard S. Rath of counsel), and Fabiani Cohen & Hall, LLP, for appellants.

      The Perecman Firm, P.L.L.C., New York City (David H. Perec-man and Peter D. Rigelhaupt of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge DiFiore.

The issue on appeal is whether the Appellate Division properly determined that plaintiff Thomas O’Brien was entitled to summary judgment on liability on his Labor Law § 240 (1) cause of action. We conclude that there are triable issues of fact and that, therefore, summary judgment should have been denied.

Plaintiff was an employee of DCM Erectors (DCM), a subcontractor at the 1 World Trade Center construction site. Defendant Port Authority of New York and New Jersey was the owner of the premises and defendant Tishman Construction Corporation of New York was the general contractor.

On the day of the accident, plaintiff was working a 6:00 a.m. to 11:00 p.m. shift, maintaining two welding machines located on ground level at the site. It had been raining periodically during the day. At around 8:00 p.m., plaintiff headed downstairs to DCM’s shanty, one level below ground, to get his rain jacket. Plaintiff used a temporary exterior metal staircase — also referred to as a temporary scaffold. He testified at his examination before trial that the metal staircase was wet due to exposure to the elements, that his foot slipped off the tread of the top step and that he fell down the stairs, sustaining injuries. Plaintiff testified that the stairs were “steep, slippery and smooth on the edges.” He also stated that his right hand was on the handrail, but he was unable to hold on because the handrail was wet.

Plaintiff commenced this Labor Law action and, as relevant here, sought partial summary judgment on his Labor Law §§ 240 (1) and 241 (6) causes of action. In support, plaintiff submitted an expert affidavit from Walter Konon, a professional engineer and licensed building inspector with expertise in construction engineering and construction safety. Konon did not view the stairs themselves, but based his opinion on photographs in the record. Konon opined that the stairs were “not in compliance with good and accepted standards of construction site safety and practice” or with an Occupational Safety and Health Administration provision, which requires that slippery conditions on stairways be eliminated before use. Konon also stated that the stairs were “smaller, narrower and steeper than typical stairs,” making it more difficult to maintain proper footing, and that the front portion of the stairs, which comes into contact with the workers’ footwear, tended to become worn and slippery with use.

Konon claimed that the stairs showed signs of longstanding wear and tear. According to Konon, the only anti-slip measures in place at the time of plaintiff’s fall were “small round protruding [metal] nubs,” which offer “limited anti-slip protection” even when they are not worn down, as he maintained they were here. He further asserted that steel stairs have a tendency to become slippery when wet and have a decreased coefficient of friction, particularly when worn down. Konon concluded that

“[a] 11 of these conditions coupled with the fact that the stairs were wet due to rain and that the workers were allowed to work and use the stairs despite the rain and the wet stair treads, created a dangerous condition that was not in compliance with good and accepted standards of construction site safety and created a significant risk of slipping on the stairs and of thus falling down the stairs.”

Plaintiff also submitted an affidavit from a coworker, who stated that the stairs were slippery when wet and that “[a]lmost everyone was aware of the slippery nature of the stairs.”

Defendants submitted two affidavits from their construction safety expert, David H. Glabe. Glabe is a licensed professional engineer and a consultant to the construction industry, specializing in scaffolding and staircases at construction sites. Like Konon, in his first affidavit, Glabe based his opinion on photographs of the staircase. He opined that the staircase was designed for both indoor and outdoor use and was “designed and manufactured so as to provide traction acceptable within industry standards and practice in times of inclement weather.” He found “no evidence” that the perforated steel treads had been worn down by foot traffic. He further observed that the staircase provided both perforated holes to allow rain to pass through and raised metal nubs for traction, and opined that these anti-slip measures were sufficient. Glabe also disputed that the staircase was smaller, narrower or steeper than usual — rather, based on his experience, training and familiarity with this type of staircase, “the tread depth and width met good and acceptable construction industry standards.”

In a subsequent affidavit, Glabe described his inspection of a staircase of the same make and model as the one at issue. He confirmed that there was adequate space on the tread surface of the steps so that a person descending the stairs could avoid contact with the “nose or front of the step.” He characterized Konon’s opinion that the stairs had a decreased coefficient of friction as “utterly meaningless” given Konon’s failure to inspect or test the actual staircase either alone or in conjunction with testing plaintiff’s footwear. Glabe also opined that the use of both handrails could have helped prevent plaintiff’s fall. Finally, Glabe stated that, contrary to Konon’s opinion, it was “not possible” to conclude from photographs in the record that the treads had been worn down. Rather, “the components of the staircase as designed will routinely outlast the use of a particular staircase and these types of staircases may eventually be replaced based only upon a new design rather than due to wear and tear.”

Supreme Court denied the cross motions for summary judgment on plaintiff’s Labor Law § 240 (1) claim, finding that there were issues of fact as to whether the temporary staircase provided proper protection. The court, however, granted plaintiff’s motion for partial summary judgment on the Labor Law § 241 (6) claim, based on its determination that there had been a violation of Industrial Code (12 NYCRR) § 23-1.7 (d) (relating to slipping hazards).

The Appellate Division modified the order, on the law, granting plaintiff’s motion for partial summary judgment on the Labor Law § 240 (1) claim and denying plaintiff summary judgment on the Labor Law § 241 (6) claim (131 AD3d 823 [1st Dept 2015] ). The Court observed that there were conflicting expert opinions as to the adequacy and safety of the staircase but nonetheless held that it was “undisputed that the staircase, a safety device, malfunctioned or was inadequate to protect plaintiff against the risk of falling” (131 AD3d at 825).

One Justice dissented in part and would have affirmed the denial of summary judgment on the Labor Law § 240 (1) claim. The dissent would have held that the conflicting expert affidavits gave rise to questions of fact concerning whether the accident was the result of a statutory violation.

The Appellate Division granted defendants leave to appeal by certified question, asking “Was the order of the Supreme Court, as modified by this Court, properly made?” (2015 NY Slip Op 93137[U] [1st Dept 2015]). We answer the certified question in the negative.

Under Labor Law § 240 (1), contractors and owners engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” must provide “scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” Although the statute is meant to be liberally construed to accomplish its intended purpose, absolute liability is “contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein” (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). In other words, “liability may ... be imposed under the statute only where the ‘plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential’ ” (Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 97 [2015], quoting Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]).

To the extent the Appellate Division opinion below can be read to say that a statutory violation occurred merely because plaintiff fell down the stairs, it does not provide an accurate statement of the law. As we have made clear, the fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law § 240 (1) (see e.g. Berg v Albany Ladder Co., Inc., 10 NY3d 902, 904 [2008]; Toefer v Long Is. R.R., 4 NY3d 399, 407 [2005]; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 288 [2003]; Narducci, 96 NY2d at 267). Moreover, the present case is distinguishable from “cases involving ladders or scaffolds that collapse or malfunction for no apparent reason” where we have applied “a presumption that the ladder or scaffolding device was not good enough to afford proper protection” {Blake, 1 NY3d at 289 n 8).

Here, by contrast, there are questions of fact as to whether the staircase provided adequate protection. As noted above, defendants’ expert opined that the staircase was designed to allow for outdoor use and to provide necessary traction in inclement weather. Moreover, defendants’ expert opined that additional anti-slip measures were not warranted. In addition, he disputed the assertions by plaintiff’s expert that the staircase was worn down or that it was unusually narrow or steep. In light of the above, plaintiff was not entitled to summary judgment on the issue of liability.

Although the dissent places great weight on Zimmer v Chemung County Performing Arts, the holding in that case was that “in light of the uncontroverted fact that no safety devices were provided at the worksite, it was error to submit to the jury for their resolution the conflicting expert opinion as to what safety devices, if any,” should have been employed (65 NY2d 513, 523 [1985] [emphasis added]). By contrast, here, the experts differ as to the adequacy of the device that was provided. Notably, both of these experts framed their opinions in terms of whether there had been compliance with industry standards. We agree that such compliance would not, in itself, establish the adequacy of a safety device within the meaning of Labor Law § 240 (1), but we do not read defendants’ expert’s opinion to be so limited.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be modified, without costs, by denying plaintiff’s motion insofar as it sought summary judgment on the issue of liability on his Labor Law § 240 (1) claim, and as so modified, affirmed, and the certified question answered in the negative.

Rivera, J.

(dissenting). The majority’s conclusion that triable factual issues preclude summary judgment for the plaintiff reflects a misunderstanding of the legislative intent and statutory mandates of Labor Law § 240 (1). Section 240 is a “self-executing statute . . . containing its own specific safety measures” (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 522 [1985]), and subdivision (1) places ultimate responsibility for safety practices at construction sites on the property owner and general contractor (id. at 520). One of the core principles of our section 240 (1) jurisprudence is that it would undermine the purpose of this section to determine the liability of an owner, contractor, or agent by reference to industry custom and practice. Such a referral would allow owners, contractors and agents “to diminish their obligations under that statute and to set their own standard of care for the protection of workers at the worksite” (id. at 524). The majority strays from these fundamental teachings of our Labor Law jurisprudence.

Under our established case law the Appellate Division properly concluded that plaintiff is entitled to summary judgment on his Labor Law § 240 (1) claim. I would answer the certified question in the affirmative, and therefore I dissent.

L

Labor Law § 240 (1) imposes a nondelegable duty upon all owners, contractors, and agents thereof engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” to provide “scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other [safety] devices.” Those devices must “be so constructed, placed and operated as to give proper protection to a person so employed” on the work site (Labor Law § 240 [1]; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 499-500 [1993]; Rocovich v Consolidated Edison Co., 78 NY2d 509, 512 [1991]).

This duty has its roots in a nineteenth century legislative “concern over unsafe conditions that beset employees who worked at heights” (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 285 [2003], citing L 1885, ch 314). “In promulgating the statute, the lawmakers reacted to widespread accounts of deaths and injuries in the construction trades” and, “tellingly, . . . fashioned [that] pioneer legislation to ‘give proper protection’ to the worker” (Blake, 1 NY3d at 285, quoting Labor Law § 240 [1]). It embodies the legislature’s intent to “protect! ] workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor, instead of on workers, who are scarcely in a position to protect themselves from accident” (Zimmer, 65 NY2d at 520 [citations and internal quotation marks omitted]). Although Labor Law § 240 (1) evolved over time {see Blake, 1 NY3d at 285-286), the phrase “give proper protection” has remained “the heart of the statute and [has] endured through every amendment” (id. at 285). “The objective was — and still is — to force owners and contractors to provide a safe workplace, under pain of damages” (Blake, 1 NY3d at 286; see Saint v Syracuse Supply Co., 25 NY3d 117, 124 [2015]; see generally Zimmer, 65 NY2d at 520). As a consequence, we have adhered to the bedrock principle that the statute is to be construed liberally to achieve its purpose of protecting workers (id. at 521; Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 101 [2015]).

In accordance with those rules, the Court has steadfastly held that it is for the courts, not for those responsible for providing worker protection under Labor Law § 240 (1), to determine whether the mandates of that statute have been met. Specifically, Zimmer explained that

“ [t] o determine an owner or contractor’s liability for a violation of section 240 (1) by reference to whether safety devices customarily are used, and, if so, which ones give ‘proper protection’ would [be to] allow owners and contractors to diminish their obligations under that statute and to set their own standard of care for the protection of workers at the worksite” (Zimmer, 65 NY2d at 523-524).

To vest owners, contractors, and their agents with the authority to promulgate their own protective standards “would [be to] clearly contravene the legislative purpose of placing ‘ultimate responsibility for safety ... on the owner and general contractor’ ” (id. at 524, quoting 1969 NY Legis Ann at 407). Indeed, the Zimmer Court echoed this cogent observation from the Appellate Division: “ ‘[i]f the state of the building art is such that no devices have yet been devised to protect workers operating at such heights in dangerous work, it is illogical to conclude, given the purpose of the statute, that the responsibility of owners and contractors is then negated’ ” (Zimmer, 65 NY2d at 524, quoting Zimmer v Chemung County Performing Arts, 102 AD2d 993, 995 [3d Dept 1984, Mikoll, J., dissenting]; see Bland v Manocherian, 66 NY2d 452, 459 [1985] [noting that Zimmer’s “interpretation of the . . . provisions (of Labor Law § 240 [1]) is . . . binding precedent upon (this) (C)ourt”]).

For at least 30 years both our jurisprudence and parties litigating Labor Law § 240 (1) causes in courts of this state have abided by those teachings. The majority’s holding threatens their continued vitality.

II.

A. Summary Judgement Standard

It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Summary judgment is a drastic remedy reserved for those cases where there is no doubt as to the existence of material and triable issues of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). In

“cases involving ladders or scaffolds that collapse or malfunction for no apparent reason, we have (ever since Stewart v Ferguson, 164 NY 553 [1900] . . . ) continued to aid plaintiffs with a presumption that the ladder or scaffolding device was not good enough to afford proper protection. 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 plaintiff’s own acts or omissions were the sole cause of the accident” (Blake, 1 NY3d at 289 n 8 [citations omitted]).

Although the court must carefully scrutinize the motion papers in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference (see Negri v Stop & Shop, 65 NY2d 625 [1985]), bald, conclusory assertions are insufficient to defeat a summary judgment motion (Stonehill Capital Mgt. LLC v Bank of the W., 28 NY3d 439, 448 [2016]). If, in the Labor Law § 240 (1) context, defendant’s assertions in response to plaintiff’s motion for summary judgment fail to raise a fact question as to the adequacy of the safety device, or the credibility of plaintiff, the plaintiff must be accorded summary judgment (see Klein v City of New York, 89 NY2d 833, 835 [1996]).

B. Plaintiff’s Motion and Defendants’ Rebuttal

Plaintiff Thomas J. O’Brien, Jr. sued defendants, amongst others, the Port Authority of New York and New Jersey, and Tishman Construction Corporation of New York, for injuries sustained as he was descending a scaffold tower staircase on the World Trade Center construction site where he was working as a crane operator and mechanic. As relevant to this appeal, plaintiff asserted that defendants, the premises owner and general contractor for the project, were liable for violations of Labor Law § 240 (1).

After discovery, plaintiff moved under CPLR 3212 for partial summary judgment on his Labor Law § 240 (1) claim, arguing that defendants failed to provide him with an adequate safety device as required because the stairs were wet, slippery, worn, narrow, steep, and lacked anti-slip measures. In support of his motion, plaintiff submitted his deposition detailing the circumstances leading to his fall and the condition of the staircase. He explained that at the time of his injury, he was employed at the construction site. It had been raining on and off throughout the day and at approximately 8:00 p.m., he went to get his rain jacket, which was located in a shanty off a platform one flight down from where he was working. To access the lower level, plaintiff proceeded to the nearby external temporary steel scaffold staircase, which was uncovered and exposed to the elements. The natural light was dim and the area around the staircase was lit by artificial lights so plaintiff could see where he was walking.

Plaintiff described the steps as “metal, steep, slippery and smooth on the edges,” including the treads. The steps had holes throughout and the staircase had a metal railing on each side. Plaintiff saw the steps were wet, put his right hand on the handrail, and attempted to descend the staircase. When he stepped on the first step, his foot slipped off the tread and he fell down the rest of the staircase, approximately eight steps, to the platform below. The handrail was wet and so plaintiff was unable to get a grip as he fell.

As a result of the fall, plaintiff suffered various injuries, initially extending down his entire right side from where his head hit the scaffolding to his right ankle, and later including his back and neck. Following the accident plaintiff had cervical spine surgery, was prescribed pain medication for his neck, arm, and hand, and was scheduled to have ankle surgery at the time of his deposition.

Plaintiff’s additional submissions further described the slippery condition of the staircase and its impact on plaintiff’s fall. He submitted pictures of the staircase and climatological data indicating it had rained shortly before he fell. Plaintiff’s Employer’s Report for the Workers’ Compensation Board stated the injury occurred while plaintiff was “descending stair tower during rain when foot skidded off stair tread causing Mr. O’Brien to fall injuring right foot/ankle,” and another employer accident report stated that “heavy rain during the evening may have been a contributing factor as to the cause of this incident.” An affidavit from a coworker stated that the stairs “were slippery, especially when wet.” A general foreman of the supplier of this type of tower scaffolding acknowledged in his deposition that these steel stairs can become slippery when wet, that anything that makes these stairs slippery causes a danger, and that the nubs on the stairs meant for gripping wear out over time, as when people step on them all day long.

Plaintiff also submitted an expert affidavit from a professional engineer, with an expertise in construction engineering and construction safety, who opined that on the day of the injury the stairs were “not in compliance with good and accepted standards of construction site safety and practice.” He explained that wet steel treads “have a tendency to become slippery and have a decreased coefficient of friction, particularly under the circumstances here, where the stairs were worn and lacked proper and properly functioning anti-slip measures.” Further, “[s]ince these types of stair systems and the stairs in them are smaller, narrower and steeper than typical stairs it is more difficult to maintain safe and proper footing.” He stated, “those front portions of the stairs are what is contacted by the worker’s feet those parts tend to become worn and more slippery as they become older and undergo more use, requiring the use or installation of more significant, effective and additional slip protection.” He concluded that the staircase was unsafe as “the primary friction/anti-slip measure that these stairs were equipped with are small round protruding nubs, which provide limited anti-slip protection, at best, and even less as they became worn down, as they were here.”

Defendants opposed the motion and cross-moved for summary judgment to dismiss plaintiff’s Labor Law § 240 (1) claim, arguing that the injury was due to an ordinary danger not covered by the subdivision, and, alternatively, that factual issues exist concerning the adequacy of the staircase as a safety device. In support, defendants submitted two affidavits from a professional engineer. Defendants’ expert opined that plaintiff was provided with adequate protection pursuant to Labor Law § 240 (1). He noted that this type of staircase is designed to be used indoors and outdoors, including in inclement weather, and that its “perforated holes and raised metal nubs” are meant to allow water to pass through. In response to plaintiffs expert opinion that the nubs were worn, defendants’ expert claimed there was no evidence the staircase was worn due to foot traffic. Defendant’s expert stated that the staircase was “designed and manufactured so as to provide traction acceptable within industry standards and practice in times of inclement weather.”

Supreme Court denied the parties’ respective motions on the Labor Law § 240 (1) claim. The Appellate Division modified, 4-1, and granted plaintiff summary judgment on his Labor Law § 240 (1) claim, reasoning that, “[a] fall down a temporary staircase is the type of elevation-related risk to which section 240 (1) applies, and the staircase, which had been erected to allow workers access to different levels of the worksite, is a safety device within the meaning of the statute” (O’Brien v Port Auth. of NY. & N.J., 131 AD3d 823, 824 [1st Dept 2015]). The Court concluded, “[g]iven that it is undisputed that the staircase, a safety device, malfunctioned or was inadequate to protect plaintiff against the risk of falling, plaintiff is entitled to summary judgment, whatever the weather conditions might have been” (id. at 825). That determination was correct.

III.

Plaintiff established that while working at the construction site he was exposed to a gravity-related risk based on a height differential as he descended the stairs. He used a temporary staircase provided to permit workers to ascend and descend from one level to another, and the staircase thus constituted a safety device for the risk associated with traversing the height differential. The staircase failed to adequately protect plaintiff from the risk of slipping and that failure was a proximate cause of his injuries (see e.g. Bland, 66 NY2d at 460 [improper placement of ladder a proximate cause of fall]; Koenig v Patrick Constr. Corp., 298 NY 313, 319 [1948] [ladder slipping a proximate cause of fall]).

The burden then shifted to defendants to rebut and present “evidence of a triable issue of fact relating to the prima facie case or to plaintiff’s credibility” (Klein v City of New York, 89 NY2d 833, 835 [1996]). Defendants concede that the staircase provided access from the ground to a lower level on the construction site, and that while at the work site plaintiff fell down the staircase causing him injuries. Defendants, like plaintiff, describe the metal staircase as temporary, featuring handrails and staircase treads with perforated steel and raised metal nubs. Most importantly, and fatal to their position, defendants did not present evidence to rebut plaintiff’s evidence that the staircase generally is slippery, especially when wet, as it was on the day of plaintiff’s injury.

Instead, defendants maintain, and the majority agrees, that there is an issue of material fact as to whether the staircase met applicable safety standards and was in good condition at the time of the accident. This argument is based on a misunderstanding of the Labor Law. Defendants assert that, contrary to the plaintiff’s expert opinion, their expert opined that the staircase met industry standards, therefore creating a question for the factfinder. However, as this Court stated in Zim-mer, “liability is mandated by the statute without regard to external considerations such as rules and regulations, contracts or custom and usage” (65 NY2d at 523). Although industry practices, custom and usage may be relevant to determine a violation of sections 200 and 241 (6) of the Labor Law, “where injury is allegedly caused through a violation of section 240 (1), which establishes its own unvarying standard, evidence of industry practice is immaterial” {id.). The Court has made clear that reliance on industry standards for a Labor Law § 240 (1) claim is antithetical to the legislative scheme because it “would allow owners and contractors to diminish their obligations under that statute and to set their own standard of care for the protection of workers at the worksite. This would clearly contravene the legislative purpose of placing ‘ultimate responsibility for safety ... on the owner and general contractor’ ” {Zimmer, 65 NY2d at 524 [citation omitted]).

Defendants’ argument that there is a question of fact as to whether the temporary staircase was kept in good condition is based on the respective experts’ opinions concerning the condition of the metal nubs of that device — which defendants’ expert stated is what provides the steps’ anti-slipping property. Even if the nubs were not worn this is of no moment. First, this is because defendants’ expert relied on the adequacy of the nubs to prevent slipping based on industry standards, which is not sufficient to avoid liability under Labor Law § 240 (1). Second, defendants failed to address plaintiff’s testimony that because the handrails were metal and wet he could not get a grip as he fell. Thus, even apart from any question as to the efficacy of the metal nubs, defendants are liable under section 240 (1) because they failed to provide adequate handrail protection to prevent a fall or minimize injuries resulting from a slip.

Defendants’ contention that there is a question of fact as to whether any device would be able to prevent any and all accidents — what the dissent in the Appellate Division referred to as the existence of “a staircase offering superior protection from slipping hazards” presented here (131 AD3d at 825) — is merely an attempt to revive an argument expressly rejected in Zimmer (65 NY2d at 523). Considering the purposes of the statute, it would be illogical to absolve owners of liability because devices have not yet been developed to adequately protect workers from elevation-related risks.

The same holds true here. Defendants cannot escape liability under Labor Law § 240 (1) by providing an inadequate safety device merely because there is no safer staircase available. The Labor Law puts the responsibility to find an appropriate safety device squarely on the shoulders of defendants (Zimmer, 65 NY2d at 524; Blake, 1 NY3d at 286). A metal outdoor staircase known to be slippery, especially one exposed to rain, is not an appropriate safety device within the meaning of the statute. This point is implicitly conceded by defendants when they acknowledge that there was an interior staircase unexposed to the rain. Defendants could have, but did not, limit use of the metal staircase at issue here to “dry days.” Even if the temporary staircase was the industry standard for wet conditions, the defendants could have ensured safer descent by roping off the wet staircase and directing workers to use the dry interior staircase.

Nor is defendants’ assertion that the injuries are due to plaintiff’s negligence relevant to the Labor Law § 240 (1) claim. In another context we have recognized the dangers associated with walking on steps, particularly on the nose of the step, which plaintiff stated was the area in which his foot slipped.

“That a person may place his or her foot on a step in such a way as to avoid the nosing does not imply that every person will always do so. What counts here is not whether a person could avoid the defect, but whether a person would invariably avoid the defect while walking in a manner typical of human beings descending stairs” (Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 82 [2015]).

IV.

This is not a complex case, and contrary to the majority’s conclusion, there is no factual issue to be resolved by the trier of fact. As the summary judgment submissions establish, plaintiff was injured at his work site when he lost his footing on a slippery wet step of a temporary metal staircase as he descended from one level to another. Defendants failed to provide a safety device adequate to protect plaintiff from this fall. To conclude otherwise is to credit defendants’ contention that compliance with industry standards and practice is equivalent to compliance with Labor Law § 240 (1). That novel conclusion is one that conflicts with long-held jurisprudence of this Court, and it is one that I decline to join. Accordingly, I would affirm the part of the Appellate Division order concluding that plaintiff is entitled to summary judgment on liability under Labor Law § 240 (1).

Judges Abdus-Salaam, Stein and Garcia concur; Judge Rivera dissents in an opinion in which Judges Fahey and Wilson concur.

Order, insofar as appealed from, modified, without costs, by denying plaintiff’s motion insofar as it sought summary judgment of liability on his Labor Law § 240 (1) claim and, as so modified, affirmed and the certified question answered in the negative.

      . Plaintiff did not cross-appeal from the Appellate Division order, thus rendering his Labor Law § 241 (6) argument beyond our review (see CPLR 5511; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151 n 3 [2002]).

      . We note that defendants did not preserve for our review, and we thus do not address, the argument that the water was an ordinary slipping or tripping hazard unrelated to the danger that the staircase was designed to protect against (see e.g. Nicometi, 25 NY3d at 98-99).

      . My analysis is limited to that portion of the order granting summary judgment on plaintiff’s Labor Law § 240 (1) claim as it is the only matter properly before the Court (majority op at 32 n 1).

      . As the majority points out, defendants did not preserve for our review the argument that the water was an ordinary slipping or tripping hazard unrelated to the danger that the staircase was designed to protect against (see Nicometi, 25 NY3d at 98-99). Such an argument would be nonsensical here, as defendants’ expert stressed that the staircase at issue was designed to provide adequate safety when wet.

      . Instead, defendants advance the meritless arguments that Labor Law § 240 (1) does not apply to plaintiff’s case because his accident arose from an ordinary danger, not a statutorily contemplated elevation-related risk, and because plaintiff was not engaged in an elevation-related task at the time of the fall. The former argument was properly rejected by the Appellate Division majority and dissent, indeed by every judge who has considered it in the course of this litigation, and is not even mentioned by the majority here.
      We rejected the logic of the latter argument in Nicometi, where we stated that <![t]he dispositive question ... is not. . . whether plaintiff was actively performing a construction task — as compared to retrieving a tool in furtherance of that objective — at the exact moment of [the plaintiff’s] accident” because such distinction “would generally be illogical and inconsistent with the purpose and liberal interpretation of section 240 (1) to protect workers” (25 NY3d at 98). The section is not limited to the exact moments when a worker is engaged in a particular task, but includes elevation risks attendant to the work.

      . Defendants also could have provided some other protection on this very staircase — such as additional anti-slipping tread material or some nonslip material on the handrails for a worker to hold. Defendants’ expert did not dispute that this was possible, nor that it would have made the staircase safer, but merely averred that plaintiff’s expert failed to cite or reference any standard, code, rule or regulation that requires such measures.


source: Caselaw Access Project

author: Garcia, J.

license: Public Domain

text:
    [74 NE3d 653, 52 NYS3d 270]
    David Rivera, Appellant, v Department of Housing Preservation and Development of the City of New York, Respondent, et al., Defendants. In the Matter of Leonardo Enriquez, Respondent, v Department of Housing Preservation and Development of the City of New York, Appellant.
    Argued February 9, 2017;
    decided April 4, 2017

      POINTS OF COUNSEL

      Jason Chang, New York City, for appellant in the first above-entitled action.

      Zachary W. Carter, Corporation Counsel, New York City (Jeremy W. Shweder, Richard Dearing and Devin Slack of counsel), for respondent in the first above-entitled action.

      Zachary W. Carter, Corporation Counsel, New York City (Jeremy W. Shweder, Richard Dearing and Devin Slack of counsel), for appellant in the second above-entitled proceeding.

      Joseph A. Altman, P.C., Bronx (Ian R. Manas and Joseph A. Altman of counsel), for respondent in the second above-entitled proceeding.
   OPINION OF THE COURT

Garcia, J.

These cases concern liens placed upon property by the New York City Department of Housing Preservation and Development (HPD) for reimbursement of relocation expenses pursuant to Administrative Code of City of NY § 26-305. The issue is whether a court may summarily discharge such a lien for facial invalidity under Lien Law § 19 (6) based on its finding that the notice of lien seeks an unreasonable amount of expenses. We hold that any dispute about the reasonableness of claimed expenses in an otherwise facially valid notice of lien must be resolved through a foreclosure trial; summary discharge at this stage is not appropriate.

I.

The Administrative Code of the City of New York requires HPD to provide relocation services to residents of a privately owned building displaced by “the enforcement of any law, regulation, order or requirement pertaining to the maintenance or operation of such building or the health, safety and welfare of its occupants” (Administrative Code of City of NY § 26-301 [1] [a] [v]). The Code empowers HPD to determine which relocation services are “necessary, useful or appropriate,” and, pursuant to this authority, HPD has determined that it will provide temporary shelter for displaced tenants (Administrative Code of City of NY § 26-301 [1]; 28 RCNY 18-01).

Under Administrative Code § 26-305, building owners responsible for the violation that caused a vacate order must reimburse HPD’s relocation expenses, including but not limited to “departmental costs, bonuses, moving expenses or other reasonable allowances given to induce tenants to relocate voluntarily” (Administrative Code § 26-305 [2]). This statute was enacted in response to what was perceived as “a calloused attitude” by landlords “towards providing services to the tenants” and in order to prevent landlords from using code violations to evict tenants that they could not otherwise legally evict (Department of Relocation Mem in Support of Local Law No. 15 [1968] of City of NY at 1 [Oct. 19, 1967]). Accordingly, the statute sought to “place the cost of relocating unfortunate tenants on the shoulders of owners who have neglected their buildings or who are using the City’s administrative functions to accomplish their own greedy financial purposes” and to provide the agency with the opportunity to recoup its relocation expenditures (id. at 2). The landlord’s obligation for such expenses lasts as long as the tenant is in temporary housing— that is, until the tenant is placed in permanent housing or is permitted, after any violations have been remedied, to return to the vacated apartment.

The Administrative Code provides that relocation expenses incurred by HPD constitute a lien on the property in question governed by the provisions of the Lien Law that are applicable to mechanic's liens (Administrative Code of City of NY § 26-305 [411). Under Lien Law § 9 and Administrative Code § 26-305 (4) (a), a notice of lien must contain certain information, including the name and address of the lienor and any attorney representing the lienor, the name of the owner of the real property, the name of the lienor's employer, the labor performed or materials furnished and the agreed price or value, the amount unpaid to the lienor, the time when the first and last items of work were performed, and a description of the property subject to the lien. Administrative Code § 26-305 (4) (a) also requires that HPD's notices include a statement that the expenses were incurred for relocation services. A lien must be filed within one year of HPD incurring the final covered expense, and liens continue in force for 10 years with the option for a 10-year extension by court order if made within the initial 10-year period (Administrative Code of City of NY § 26-305 [4] [b]).

The Lien Law provides two methods by which a property owner may discharge a mechanic's lien. A property owner may obtain summary discharge of a lien when "it appears from the face of the notice of lien" that the lien is invalid because "the labor or materials furnished" are not lienable or where the notice of lien does not include the information required by Lien Law § 9 or has not been properly filed (Lien Law § 19 [6]). Alternatively, where the validity of the underlying lien is at issue but the notice of lien is facially valid, an owner can force a foreclosure trial, with the goal of vacating the lien, by serving notice on the lienor demanding commencement of an action to enforce the lien within 30 days (Lien Law §~ 19 [3]; 59). Failure of the lienor to do so results in a court order vacating the lien.

II.

Rivera v Department of Hous. Preserv. & Dev. of the City of N.Y.

In 1995, the Fire Department issued a vacate order affecting the tenants of a building in Brooklyn owned by plaintiff Rivera. As a result, HPD provided these tenants with temporary shelter services in single-room occupancy apartments referred to as "hotels" from June 1995 through December 1999. In April 2000, within one year from the time that HPD incurred expen- ses for the last displaced tenant, HPD filed a notice of lien seeking reimbursement of its relocation expenses for two tenants. In March 2010, HPD applied to renew the lien ex parte, and Supreme Court continued the lien.

In 2012, Rivera filed a complaint seeking to summarily vacate the lien. HPD moved to dismiss the complaint and Rivera cross-moved for summary judgment. Supreme Court granted HPD’s motion to dismiss the complaint and denied Rivera’s cross motion, holding that HPD’s shelter service expenses were lienable, and therefore summary discharge was inappropriate. Determination of the lien’s underlying validity, according to the court, was a matter for a foreclosure trial. The Appellate Division, Second Department affirmed, holding that where “the notice of lien was not invalid on its face, any dispute regarding the validity of the lien must await trial thereof by foreclosure” (130 AD3d 802, 802 [2d Dept 2015]).

Matter of Enriquez v Department of Hous. Preserv. & Dev. of the City of N.Y.

In 2010, the Department of Buildings issued a vacate order affecting occupants of the cellar of a building owned by petitioner Enriquez. As a result, HPD provided relocation services to a displaced tenant from June 2010 until June 2011. HPD then filed a notice of lien in Supreme Court seeking relocation expenses.

In 2012, Enriquez filed a petition seeking to summarily vacate HPD’s lien, arguing that the notice of lien was facially invalid. HPD cross-moved to dismiss the petition. Supreme Court granted HPD’s motion to dismiss the petition, holding that the notice was facially valid, the lien therefore could not be summarily discharged, and accordingly any substantive disputes were properly raised in a foreclosure trial. The court rejected Enriquez’s additional argument that the lien was not properly served. The Appellate Division, First Department reversed and held that the notice of lien was facially invalid and should be discharged (129 AD3d 405 [1st Dept 2015]). The Court held that “HPD’s financing of the tenant’s residence in a hotel for an entire year was not reasonable” under Administrative Code § 26-305 (2) and that the agency’s payment of hotel charges for a displaced tenant for a year did not qualify as “temporary shelter benefits” under 28 RCNY 18-01 (b) (3) (129 AD3d at 405).

This Court granted plaintiff leave to appeal in Rivera v Department of Hous. Preserv. & Dev. of the City of N.Y. (26 NY3d 919 [2016]) and granted HPD leave to appeal in Matter of Enriquez v Department of Hous. Preserv. & Dev. of the City of N.Y. (26 NY3d 918 [2016]) to resolve these conflicting approaches to determinations of facial validity at the summary discharge stage.

III.

We hold that the liens filed by HPD here were facially valid and so summary discharge was not appropriate. An allegedly unreasonable amount of claimed expenses does not render a notice of lien facially invalid. Summary discharge addresses only the facial validity of the notice of lien and leaves disputes regarding the claimed expenses in the underlying liens to be resolved at a foreclosure hearing or trial. We have long held that the extent to which services may be recovered through a mechanic’s lien, and therefore the resolution of disputes regarding the expenses claimed in a lien, “should be decided after a trial, and not in a summary proceeding” (Matter of Bralus Corp. v Berger, 307 NY 626, 628 [1954]).

Facial invalidity occurs only in limited circumstances not present here. In both cases at issue, the notices of lien contained all required elements under Lien Law § 9 and Administrative Code § 26-305 (4) (a) and were properly filed. While summary discharge is proper when a notice of lien includes non-lienable expenses (see e.g. Matter of Robert Plan Corp. v Greiner-Maltz Co., 229 AD2d 122 [2d Dept 1997]), the notices of lien here demonstrated no such defect. The notices stated that they sought “hotel expenses,” “administration costs,” and “relocation costs,” which sufficed to meet the requirement that the notice contain a statement of “the labor performed or materials furnished.” Rather than challenge those categories of expenses as “lienable,” both Rivera and Enriquez object to the amount claimed for such expenses. Such a dispute is not properly resolved through a summary discharge proceeding.

To the extent that the property owners do challenge whether temporary shelter services are lienable, such a challenge is also without merit. The Administrative Code clearly contemplates HPD providing such services to displaced tenants and subsequently seeking reimbursement. Indeed, as the Appellate Division, Second Department has previously held, in a factually analogous case,

“there is no merit to the petitioner’s argument that hotel expenses incurred by DHPD for relocating the tenants who vacated the subject premises pursuant to a vacate order issued by the Buildings Department are not recoverable. DHPD is required to offer temporary shelter to relocatees, and temporary shelter benefits is a separate item, in addition to, moving expenses” (Matter of Retek v City of New York, 14 AD3d 708, 709 [2d Dept 2005]).

The Administrative Code gives HPD broad discretion to determine what services must be provided to displaced tenants and enables HPD to provide temporary shelter services. When the statute was amended in 1997, the City Council’s Committee on Housing and Buildings acknowledged that HPD was entitled to recoup expenses for their “shelter system” and endeavored to make these reimbursements easier for HPD to obtain by allowing HPD to place a lien on a rolling basis while relocation services are being provided (see Report of the Infrastructure Division Local Law No. 65 [1997] of City of NY at 4 [May 12, 1997]). This amendment sought to ensure that HPD was able to recover expenses for temporary shelter services from owners who would otherwise avoid the effect of any lien by transferring title to the property before HPD terminated relocation services and was able to secure the lien. Accordingly, there is no merit to the argument that temporary shelter services are not properly lienable expenses.

Similarly meritless is the property owners’ argument that the amount of time HPD provided shelter services to these displaced tenants renders the notice of lien facially invalid. None of the relevant statutes contain any provision limiting the amount of time shelter services may be provided to displaced tenants, and reading any such rule into the process would contravene the legislative intent. Such an interpretation would also provide an incentive for property owners to delay remedial action in order to exceed any prescribed time period and thereby prevent HPD from recovering the accruing relocation expenses. Accordingly, any argument that the notice of lien is facially invalid due to the time period for which relocation expenses are sought must fail.

Although the First Department correctly acknowledged that HPD has authority to place a lien for some amount of shelter expenses and noted that “[h]otel expenses are recoverable pursuant to Administrative Code § 26-305,” citing to Retek, the Court found the amount of charges and the length of time of HPD’s provision of shelter services unreasonable (Enriquez, 129 AD3d at 405). These determinations were made solely on the basis of the notice of lien and without evidentiary submissions. But disputes of this type are properly resolved at a foreclosure trial, during which property owners are free to argue that claimed relocation expenses are unreasonable.

The remaining contentions from the property owners are meritless. Enriquez argues that HPD’s notice of lien is facially invalid because HPD failed to demonstrate that the displaced tenant vacated the property in response to the vacate order. Neither Lien Law § 9 nor Lien Law § 19 (6) requires the submission of extrinsic evidence to accompany a notice of lien or in a summary discharge proceeding demonstrating that the tenant vacated the premises because of the vacate order. To the extent that the Appellate Division held in Matter of Toolsee v Department of Hous. Preserv. & Dev. of City of N.Y. (299 AD2d 209 [1st Dept 2002]) that such evidence is required, this holding was incorrect: no such requirement exists in the statute, and no additional evidentiary submission is required to avoid summary discharge.

Rivera argues that ex parte continuance of the lien was improper and violated his due process rights. This argument must also be rejected. This Court has previously held that the ex parte filing of an original notice of lien does not violate due process (Carl A. Morse, Inc. v Rentar Indus. Dev. Corp., 43 NY2d 952 [1978]). It follows that the ex parte continuance of such a lien likewise cannot be considered a deprivation of due process.

Accordingly, in Rivera v Department of Hous. Preserv. & Dev. of the City of N.Y., the order of the Appellate Division should be affirmed, with costs, and in Matter of Enriquez v Department of Hous. Preserv. & Dev. of the City of N.Y., the order of the Appellate Division should be reversed, with costs, and the order of Supreme Court reinstated.

In Rivera v Department of Hous. Preserv. & Dev. of the City of N.Y.: Order affirmed, with costs.

Opinion by Judge Garcia. Chief Judge DiFiore and Judges Rivera, Abdus-Salaam, Stein, Fahey and Wilson concur.

In Matter of Enriquez v Department of Hous. Preserv. & Dev. of the City of N.Y.: Order reversed, with costs, and order of Supreme Court, Bronx County, reinstated.

Opinion by Judge Garcia. Chief Judge DiFiore and Judges Rivera, Abdus-Salaam, Stein, Fahey and Wilson concur.


author: Abdus-Salaam, J. Stein, J.

text:
    [74 NE3d 632, 52 NYS3d 249]
    The People of the State of New York, Appellant, v Carlos Valentin, Respondent.
    Argued February 15, 2017;
    decided March 30, 2017

      POINTS OF COUNSEL

      James A. McCarty, Special Acting District Attorney, White Plains (Virginia A. Marciano, Laurie G. Sapakoff and Steven A. Bender of counsel), for appellant.

      Robert S. Dean, Center for Appellate Litigation, New York City, for respondent.
   OPINION OF THE COURT

Abdus-Salaam, J.

The trial court did not commit reversible error by including an initial aggressor exception in its justification charge. As there was a reasonable view of the evidence that defendant was the initial aggressor in the use of deadly physical force, this factual determination was properly before the jury. The order of the Appellate Division should therefore be reversed.

L

Defendant was charged with murder in the second degree, attempted murder in the second degree, manslaughter in the first degree, attempted assault in the first degree, assault in the second degree, and criminal possession of a weapon in the second degree for fatally shooting Justin McWillis and shooting Edward Hogan in the arm. Hogan was the People’s primary witness at trial.

These three men were known to each other. McWillis and Hogan were friends of defendant’s mother’s tenant. Defendant and his mother had grown increasingly frustrated with these young men congregating around their house. They alleged the men were using and selling drugs and instilling fear in the block’s residents. Defendant and his mother had repeatedly called the police to report the issue, but responding officers usually advised that there was nothing they could do. The night before the shooting, after the police informed defendant they could not arrest anyone because there was no evidence of any criminal activity, defendant told an officer “I know my 2nd Amendment rights to bear arms. If I put a bullet to one of these kids’ heads you guys aren’t going to do s**t. I don’t need the cops anymore.”

The following day, defendant left his house and approached a nearby bodega. He had a loaded firearm concealed under his jacket. Hogan and McWillis saw him from across the street. Hogan approached defendant and said “[l]et me speak to you for a second,” to which defendant replied “[w]hat do you want, to get shot?” Hogan and defendant then discussed the incident from the previous evening, and defendant complained about the group of men disrespecting his mother. McWillis and two others then crossed the street, and McWillis entered the bodega. Hogan and defendant followed him inside, defendant and McWillis got into an argument in the bodega, and McWillis grabbed a mop handle.

According to Hogan, defendant and McWillis continued to argue as they exited the bodega, but as defendant was walking away from McWillis, back toward his house, McWillis at some point put down the mop handle. Hogan then saw McWillis pick up the mop handle again and approach defendant. Hogan’s testimony is inconsistent as to the exact sequence of events that followed: at some point, McWillis swung the mop handle at defendant, and defendant pulled a gun out of his open jacket, shot Hogan in his raised arm, and fatally shot McWillis, hitting him in the chest at close range.

At times during Hogan’s testimony, he indicated that defendant took out the gun only after McWillis swung the mop handle. Several other times, however, he described the actions as simultaneous. But at one point, Hogan testified that as defendant “was pulling out, Justin was swinging. I guess, well, you could say he hit him [with the mop handle] after I got shot; but when he hit him, the gun was already pulled out.” Hogan stated that the entire series of events took mere seconds.

The trial court charged the jury on justification. Over defendant’s objection, the court included language from the standard Criminal Jury Instructions regarding the initial aggressor exception:

“[N]otwithstanding the rules [of justification] that I have just explained, the Defendant would not be justified in using deadly physical force under the following circumstances: No. 1, the Defendant would not be justified if he was the initial aggressor. Initial aggressor means the person who first attacks or threatens to attack, that is to say, the first person who uses or threatens the imminent use of offensive physical force.
“The actual striking of the first blow or inflicting of the first wound, however, does not necessarily determine who was the initial aggressor. A person who reasonably believes that another is about to use deadly physical force upon him need not wait until he is struck or wounded.
“He may, under such circumstances, be the first to use deadly physical force so long as he reasonably believed it was about to be used against him. He is then not considered to be the initial aggressor under those circumstances, even though he strikes the first blow or inflicts the first wound.
“Arguing, using abusive language, calling a person names or the like unaccompanied by physical threats or acts does not make a person an initial aggressor and does not justify physical force.”

Defendant was convicted of manslaughter in the first degree. The Appellate Division, with one Justice dissenting, reversed, holding that the trial court improperly instructed the jury on the initial aggressor exception to justification (128 AD3d 428 [1st Dept 2015]). The dissenting Justice granted leave to appeal (2015 NY Slip Op 87471[U] [1st Dept 2015]), and we now reverse and remit to the Appellate Division for consideration of the issues raised but not determined on the appeal to that Court.

II.

“It is well settled that, ‘[i]n evaluating a challenged jury instruction, we view the charge as a whole in order to determine whether a claimed deficiency in the jury charge requires reversal’ ” (People v Walker, 26 NY3d 170, 174 [2015], citing People v Medina, 18 NY3d 98, 104 [2011]). In reviewing a trial court’s charge, reversal is only appropriate if “the charge, ‘read . . . as a whole against the background of the evidence produced at the trial,’ likely confused the jury regarding the correct rules to be applied in arriving at a decision” (id. at 174-175, quoting People v Andujas, 79 NY2d 113 [1992]). It is uncontested that a justification charge pursuant to Penal Law § 35.15 was appropriate in this case. In the context of that self-defense charge, an initial aggressor instruction was warranted because the charge was requested and there was an issue of fact on the point.

Hogan’s testimony and timeline placed into issue whether defendant or McWillis was the initial aggressor as to the use of deadly force, especially when considering the brevity and intensity of the altercation. Certainly, there is a reasonable view of the evidence that McWillis was the initial aggressor as to physical force, because he picked up the mop handle and followed defendant before defendant ever used or threatened the use of a gun. However, the jury also could have reasonably concluded that defendant was the initial aggressor as to the use of deadly physical force, because he pulled out his loaded gun and shot Hogan and McWillis before McWillis in fact threatened him with the mop. And while there are instances where a “normally innocuous item may constitute ‘deadly physical force’ ” (see dissenting op at 64; People v Dodt, 61 NY2d 408, 414 [1984]), under these circumstances, the jury reasonably could have concluded that the swinging mop handle did not. Thus, the court properly instructed the jury on the definition of an initial aggressor under Penal Law § 35.15.

Notably, the instruction given did not imply or suggest that defendant was the initial aggressor. Rather, the initial aggressor charge explained the law that defendant, in using deadly physical force, was not required to wait until he was struck or wounded if he reasonably believed that deadly force was about to be used against him. Under the charge given, if the jury found the use of the mop handle was deadly physical force, defendant would not be the initial aggressor. The charge, which aided the jury in understanding justifiable use of force in self-defense under Penal Law § 35.15, was properly given based on the evidence, and there is no deficiency requiring reversal.

Here, as the Appellate Division dissent noted, “[n]o matter what the court charged in relation to the initial aggressor issue, [the jury could have reasonably concluded] there was simply no evidentiary support for a finding that defendant was justified in using deadly physical force against McWillis when faced with McWillis’s either threatened or actual use of a mop handle” (Valentin, 128 AD3d at 433 [Saxe, J., dissenting]). Our law has “never required that an actor’s belief as to the intention of another person to inflict serious injury be correct in order for the use of deadly force to be justified, but [it has] uniformly required that the belief comport with an objective notion of reasonableness” (People v Goetz, 68 NY2d 96, 107 [1986]). Thus, the jury could have concluded that defendant’s choice to respond to a swinging plastic mop handle with a loaded and operable gun was not reasonable, especially in light of his prior comments to police about taking the law into his own hands.

Accordingly, the order of the Appellate Division should be reversed, and the case remitted to that court for consideration of the issues raised but not determined on the appeal to that Court.

Stein, J.

(dissenting). No reasonable view of the evidence could support a finding that defendant was the initial aggressor. Because this case hinged on a justification defense, defendant was prejudiced by the trial court’s error of including the initial aggressor exception in its justification charge. Accordingly, I respectfully dissent, and would affirm the Appellate Division order remitting for a new trial.

There is no dispute that defendant used deadly physical force and that a justification charge was appropriate here. The trial court’s instruction on justification properly began with the basic premise of that defense in the context of deadly force: £<[u]nder our law a person may use deadly physical force upon another individual when and to the extent that he reasonably believes it to be necessary to defend himself from what he reasonably believes to be the use or imminent use of unlawful deadly physical force by such individual.” Under appropriate circumstances, the basic justification charge may be supplemented by instructions regarding one or more statutory exceptions to that defense, including the initial aggressor exception (see Penal Law § 35.15 [1]). However, in order to avoid confusing the jury, a trial court should supplement the basic justification charge with only those exceptions that are, or may be, applicable under the facts of the particular case (see CJI2d[NY] Defenses — Justification: Use of Deadly Physical Force in Defense of a Person).

Although there was neither evidence to support, nor any necessity for, an initial aggressor supplement to the basic justification charge, the court further charged the jury that, “notwithstanding” the explanation just given regarding justification, “[defendant would not be justified in using deadly physical force . . . if he was the initial aggressor. Initial aggressor means the person who first attacks or threatens to attack, that is to say, the first person who uses or threatens the imminent use of offensive physical force,” although a person may protect himself or herself prior to the other person actually striking the first blow.

Giving the instruction regarding this exception was error because there was insufficient record evidence from which the jury could conclude that defendant was the initial aggressor (see Penal Law § 35.15 [1] [b]). Additionally, because of the extensive use made by the People of that erroneously-given initial aggressor instruction, defendant was most certainly prejudiced.

I.

Initially, the People assert that, because the plastic mop handle used by the victim was flimsy, its use could not constitute deadly force. The majority acknowledges that the swinging of a mop handle may, under particular circumstances, reasonably be viewed as presenting a threat of deadly physical force (see majority op at 61-62). Nonetheless, the dissenting Justice at the Appellate Division, with whom the majority here now agrees, concluded that “there was simply no evidentiary support for a finding that defendant was justified in using deadly physical force against [Justin] McWillis when faced with McWillis’s either threatened or actual use of a mop handle” (128 AD3d 428, 433 [1st Dept 2015, Saxe, J., dissenting]).

In evaluating the justification defense, “[t]he critical focus must be placed on the particular defendant and the circumstances actually confronting him [or her] at the time of the incident, and what a reasonable person in those circumstances and having defendant’s background and experiences would conclude” (People v Wesley, 76 NY2d 555, 559 [1990]; see People v Umali, 10 NY3d 417, 425 [2008], cert denied 556 US 1110 [2009]). Defendant had recently been terrorized by McWillis and his friends, in situations requiring police contact. Moreover, the record before us is bereft of any evidence that defendant ever held the mop handle or otherwise knew it was made of plastic, as opposed to wood or some other substantial material. Nor does the evidence reflect whether defendant was initially aware of whether the metal bracket used to attach a mop head was on the end of the handle being held by McWillis or on the end being swung at defendant. This Court has previously recognized that, “[depending on how it is used, even a normally innocuous item may constitute ‘deadly physical force’ ” (People v Dodt, 61 NY2d 408, 414 [1984]).

Deadly physical force is defined as “physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury,” which can include serious and protracted disfigurement (Penal Law § 10.00 [11], [10]). Like a baseball bat swung at a person, which can constitute deadly physical force (see People v Ozarowski, 38 NY2d 481, 491 n 3 [1976]), swinging a mop handle could easily fall within that definition. Consistent with the majority’s acknowledgment — that whether use or threatened use of a mop handle could reasonably be viewed as deadly physical force is generally a factual question (see majority op at 61-62)— the circumstances here presented a factual question for the jury as to whether defendant’s use of deadly physical force was reasonable (i.e., whether such use was justified). That question, however, is separate and distinct from the question of whether defendant was the initial aggressor in the conflict (see People v Petty, 7 NY3d 277, 285 [2006]), and, on this record, the latter question should not have been submitted to a jury.

If the jury were to find — as the majority does — that McWil-lis’s use or threatened use of the mop handle did not constitute deadly physical force, defendant would not have been justified in responding with deadly physical force. In that case, the basic justification charge would be sufficient to allow the jury to conclude whether that defense was available to defendant, and no reference to the initial aggressor exception was necessary or appropriate. If, on the other hand, the jury were to find that the use or threatened use of the mop handle did constitute deadly physical force, the sole remaining question relevant to the applicability of the initial aggressor exception would be who first used or threatened the imminent use of deadly force. In that case, the initial aggressor charge was still inappropriate here because there was no reasonable view of the evidence to support a finding that defendant was the initial aggressor.

The majority accurately describes the record facts leading up to the final confrontation at issue. In short, after defendant and McWillis had a verbal argument, during which McWillis grabbed the mop handle and defendant did not respond with any type of weapon, McWillis put the mop handle down. When defendant began to walk away in the direction of his home, McWillis again picked up the mop handle and approached defendant from behind. The evidence regarding what happened next came from Edward Hogan, the only testifying eyewitness. Hogan testified that he was not sure about the timing of events. However, he testified several times that McWillis was swinging the mop handle at defendant at the same time that defendant was pulling out the gun, i.e., that the two actions occurred simultaneously. Under the charge as given, if McWillis swung the mop handle at defendant either before or at the same time that defendant pulled out the gun, defendant could not be considered the initial aggressor.

In support of its position that the initial aggressor charge was properly given, the People refer to two portions of the record. In one cited portion, the prosecutor asked Hogan, “Now, at the time that you were being shot by the defendant and your arm was up, was [McWillis] doing something with the mop or had he already done something with the mop?” Hogan responded,

“I really don’t remember as far as if it was before or after, but like I said, it was like — it was, to me, as my memory, it was basically simultaneously. He was pulling out, [McWillis] was swinging. I guess, well, you could say he hit him after I got shot; but when he hit him, the gun was already pulled out.”

Hogan’s repeated insistence that the swinging of the mop handle and defendant pulling out the gun occurred simultaneously forecloses any reading of this testimony as establishing that defendant shot before he was threatened. The People’s view of this rambling answer, which view is accepted by the majority, ignores any distinction between the initial swinging of the mop handle and the actual hit, when the handle made a connection with its intended target — defendant. Hogan also testified that the entire series of events — consisting of McWillis swinging the mop handle, defendant pulling out the gun, Hogan getting shot, and McWillis getting shot and falling down — happened very quickly, within a matter of a few seconds. Hogan’s testimony is insufficient to establish that defendant pulled out the gun before McWillis held the mop handle in a threatening manner or started to swing it at defendant, as opposed to when it actually struck defendant. Thus, according to this portion of Hogan’s testimony, defendant would not have been the initial aggressor, as long as he reasonably believed that McWillis was first using or threatening the imminent use of deadly physical force against him.

In the other portion of the record cited by the People, Hogan testified that McWillis swung the mop handle at defendant at the same time that Hogan got shot. From this testimony, an inference could conceivably be drawn that defendant had the gun out before McWillis began swinging. However, in response to the next substantive question, Hogan clarified that defendant was pulling out the gun as McWillis was swinging the mop handle at him. This indicates either that the mop handle was in motion and being swung at defendant (i.e., its imminent use against him was at least threatened) before defendant pulled out the gun, or that defendant and McWillis acted simultaneously. Under either of those scenarios, defendant would not be the initial aggressor.

In sum, the jury could have found that defendant was the initial aggressor only if it relied on a misreading of a snippet of Hogan’s testimony and disregarded his repeated assertion that defendant and McWillis acted simultaneously. Because no reasonable view of the evidence would support a finding that defendant was the initial aggressor, Supreme Court should not have instructed the jury regarding that exception to the justification defense.

II.

I agree with the Appellate Division majority’s conclusion that the court’s error in instructing the jury regarding the initial aggressor exception was not harmless. The charge, as given, “likely confused the jury regarding the correct rules to be applied in arriving at a decision” regarding that defense (People v Walker, 26 NY3d 170, 174-175 [2015], citing People v Andujas, 79 NY2d 113 [1992]), “ ‘such that the degree of precision required for a jury charge was not met’ ” (Walker, 26 NY3d at 177, quoting People v Medina, 18 NY3d 98, 104 [2011]). This is so, in particular, because of the way the prosecutor portrayed what actions would be sufficient to classify defendant as an initial aggressor — many of which arguably fell within the court’s initial aggressor instruction — so that a jury following that instruction could well have concluded that, even if defendant pulled his gun out and shot McWillis after being threatened with a deadly weapon, he was not entitled to the defense of justification.

The prosecutor, in summation, argued that there were nine different facts, each independently sufficient to establish that defendant was the initial aggressor, thus depriving him of the defense of justification. Those facts included that “the [defendant chose to arm himself with a loaded .22 handgun”; “[h]e hides the gun in the jacket”; “it’s cold enough to snow . . . , but he’s outside . . . [with his] jacket . . . unzipped”; he asked Hogan “[d]o you want to get shot”; defendant “is a grown man . . . staring at an 18 year old.” None of these facts would, as a matter of law, make defendant the initial aggressor, but each could have been erroneously interpreted by the jury as the initial “threat [ ] to attack.” As to these and several other statements and actions of defendant, the prosecutor’s argument was incorrect and misleading, and reliance thereon could have led the jury to find that defendant was the initial aggressor despite a lack of record evidence for such a finding.

More specifically, the potential for such a result was exacerbated by the error introduced by the court’s instruction, which suggested that “notwithstanding” defendant’s establishment of a justification defense, the jury should convict him if he was the initial aggressor. This is exemplified by the following: if the jury concluded that defendant was first threatened with the mop handle and that the mop handle was a deadly weapon (and defendant was, therefore, entitled to the defense of justification), the jury may nevertheless have concluded that, because defendant had previously asked Hogan if he wanted to get shot, defendant was the “person who first. . . threatened] to attack” and, thus, could not assert the defense of justification. The jury could reasonably come to this conclusion by literally interpreting the instructions given, in combination with the prosecutor’s incorrect explication of what behavior would qualify defendant as an initial aggressor.

Additionally, the notes submitted to the court by the jury during deliberations indicate that the jurors had a difficult time deciding the case, lending further support to the conclusion that there is a reasonable possibility that the verdict would have been different had the charge not included the initial aggressor exception. Because the error was not harmless, defendant should be given a new trial.

Chief Judge DiFiore and Judges Fahey and Garcia concur; Judge Stein dissents and votes to affirm in an opinion in which Judges Rivera and Wilson concur.

Order reversed and case remitted to the Appellate Division, First Department, for consideration of issues raised but not determined on appeal to that Court.

       The People misconstrued this Court’s decision in People v Petty (7 NY3d 277, 285 [2006]). While not entirely clear, it is possible that Supreme Court was also misled by one of our statements therein. In that case, we stated that “[w]hen justification is in issue, the trier of fact must first determine whether the defendant was the initial aggressor” (id.). That sentence does not mean that the initial aggressor instruction must be given in every case where justification is asserted as a defense. Rather, that instruction should be given only when there is sufficient evidence to require it. Based on the circumstances present in Petty, proof of prior threatening statements by the defendant was allowed into evidence because it bore on the likelihood that the defendant was in fact the initial aggressor — not that the statements themselves constituted acts of aggression sufficient to deprive the defendant of the justification defense, which is how the prosecutor used the prior threats here. Contrary to the People’s summation, however, prior verbal threats, by themselves, do not make a person the initial aggressor. Likewise, the fact that defendant armed himself with a gun, standing alone, did not make him the initial aggressor.