source: Caselaw Access Project

author: Pigott, J. Stein, J. Read, J.

license: Public Domain

text:
    [34 NE3d 815, 13 NYS3d 305]
    Raul Barreto, Appellant, et al., Plaintiff, v Metropolitan Transportation Authority et al., Respondents. (And Third-Party Actions.)
    Argued February 11, 2015;
    decided May 7, 2015

      POINTS OF COUNSEL

      Gorayeb & Associates, P.C., New York City (John M. Shaw of counsel), for appellant.
    I. Plaintiff should have been awarded partial summary judgment against defendants on plaintiff’s Labor Law § 240 (1) cause of action and the motions to dismiss that claim should have been denied. (Gordon v Eastern Ry. Supply, 82 NY2d 555; Koenig v Patrick Constr. Corp., 298 NY 313; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 65 NY2d 1054; Quigley v Thatcher, 207 NY 66; Rocovich v Consolidated Edison Co., 78 NY2d 509; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Ortega v City of New York, 95 AD3d 125; Klapa v O&Y Liberty Plaza Co., 218 AD2d 635; Runner v New York Stock Exch., Inc., 13 NY3d 599; McCann v Central Synagogue, 280 AD2d 298.) II. In its decision, the Appellate Division misconstrued the facts, ignored other facts and misapplied well settled law regarding sole proximate cause/ recalcitrance. (O’Connor v Enright Marble & Tile Corp., 22 AD3d 548; Orellana v American Airlines, 300 AD2d 638; Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35; Singh v Barrett, 192 AD2d 378; Bland v Manocherian, 66 NY2d 452; Mac-Nair v Salamon, 199 AD2d 170; Yu Xiu Deng v A.J. Contr. Co., 255 AD2d 202; Morales v Spring Scaffolding, Inc., 24 AD3d 42; Harris v Rodriguez, 281 AD2d 158; Weininger v Hagedorn & Co., 91 NY2d 958.) III. Plaintiff has maintained a viable Labor Law § 241 (6) claim in that plaintiff has cited to specific and relevant Industrial Code sections and was not the sole proximate cause of the accident. (Caddy v Interborough R.T. Co., 195 NY 415; Lewis-Moors v Contel of N.Y., 78 NY2d 942; Joblon v Solow, 91 NY2d 457; Nagel v D & R Realty Corp., 99 NY2d 98; Copertino v Ward, 100 AD2d 565; Maher v Atlas Tr. Mix Corp., 104 AD2d 591; Celestine v City of New York, 86 AD2d 592, 59 NY2d 938; Olsen v James Miller Mar. Serv., Inc., 16 AD3d 169; O’Connor v Lincoln Metrocenter Partners, 266 AD2d 60; Messina v City of New York, 300 AD2d 121.) IV. Plaintiffs Labor Law § 200 and common-law negligence claims have merit and should not have been dismissed. (Allen v Cloutier Constr. Corp., 44 NY2d 290; Russin v Louis N. Picciano & Son, 54 NY2d 311; DaBolt v Bethlehem Steel Corp., 92 AD2d 70, 60 NY2d 701; Giuffrida v Metro N. Commuter R.R. Co., 279 AD2d 403; Negri v Stop & Shop, 65 NY2d 625; Giambrone v New York Yankees, 181 AD2d 547; Forde v Columbus McKinnon Corp., 274 AD2d 446; Landry v General Motors Corp., Cent. Foundry Div., 210 AD2d 898; Barzaghi v Maislin Transp., 115 AD2d 679, 67 NY2d 852; Murdoch v Niagara Falls Bridge Commn., 81 AD3d 1456.)

      Wilson Elser Moskowitz Edelman & Dicker LLP, New York City (Patrick J. Lawless of counsel), for Metropolitan Transportation Authority and another, respondents.
    I. The plaintiff’s Labor Law § 240 (1) claim was properly dismissed as the evidence clearly shows that he was the sole proximate cause of the accident. (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280; Robinson v East Med. Ctr., LP, 6 NY3d 550; Montgomery v Federal Express Corp., 4 NY3d 805; Hunt v Meyers, 63 AD3d 685; Hughes-Berg v Mueller, 50 AD3d 856; Burke v Hilton Resorts Corp., 85 AD3d 419; Kosavick v Tishman Constr. Corp. of N.Y., 50 AD3d 287; Morales v Spring Scaffolding, Inc., 24 AD3d 42.) II. The plaintiff’s Labor Law § 241 (6) claim was properly dismissed. (Parker v 205-209 E. 57th St. Assoc., LLC, 100 AD3d 607.) III. The plaintiff’s Labor Law § 200 and common-law negligence claims were properly dismissed. (Ortega v Puccia, 57 AD3d 54; Azad v 270 5th Realty Corp., 46 AD3d 728; Kerins v Vassar Coll., 15 AD3d 623; Dennis v City of New York, 304 AD2d 611; Comes v New York State Elec. & Gas Corp., 82 NY2d 876; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343; Russin v Louis N. Picciano & Son, 54 NY2d 311; O’Sullivan v IDI Constr. Co., Inc., 7 NY3d 805; Cahill v Triborough Bridge & Tunnel Auth., 31 AD3d 347; Dalanna v City of New York, 308 AD2d 400.)

      Zachary W. Carter, Corporation Counsel, New York City (Susan Paulson and Francis F. Caputo of counsel), for City of New York, respondent.
    Plaintiffs claims were correctly dismissed because his own failure to observe the safety requirements of his employment was the sole proximate cause of his accident. (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280; Hagins v State of New York, 81 NY2d 921; Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35; Robinson v East Med. Ctr., LP, 6 NY3d 550; Ares v State of New York, 80 NY2d 959.)

      Jones Morrison, LLP, Scarsdale (Clifford I. Bass of counsel), for IMS Safety Inc., respondent.
    I. The plaintiffs claims under Labor Law §§ 240 (1) and 241 (6) were properly dismissed against IMS Safety Inc. (Russin v Louis N. Picciano & Son, 54 NY2d 311; Nascimento v Bridgehampton Constr. Corp., 86 AD3d 189; Doherty v City of New York, 16 AD3d 124; Smith v McClier Corp., 22 AD3d 369; Lamia v City of New York, 2008 NY Slip Op 32136[U]; Lazarou v Turner Constr. Co., 18 AD3d 398; Loiacono v Lehrer McGovern Bovis, 270 AD2d 464; Generoso v New York City Hous. Auth., 2008 NY Slip Op 33596[U]; Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139; Pope v Safety & Quality Plus, Inc., 111 AD3d 911.) II. The plaintiffs Labor Law § 200 and common-law negligence claims were properly dismissed against IMS Safety Inc. (Jock v Fien, 80 NY2d 965; Buckley v Columbia Grammar & Preparatory, 44 AD3d 263; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Comes v New York State Elec. & Gas Corp., 82 NY2d 876; Russin v Louis N. Picciano & Son, 54 NY2d 311; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343; Reilly v Newireen Assoc., 303 AD2d 214; Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139; Hughes v Tishman Constr. Corp., 40 AD3d 305; Jones v New York City Hous. Auth., 2010 NY Slip Op 31209[U].) III. The Metropolitan Transportation Authority defendants and the City of New York have no viable cross claims against IMS Safety Inc. (North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281; Adams v Boston Props. Ltd. Partnership, 41 AD3d 112; Bussanich v 310 E. 55th St. Tenants, 282 AD2d 243; Goncalves v 515 Park Ave. Condominium, 39 AD3d 262.)
   OPINION OF THE COURT

Pigott, J.

Plaintiff Raul Barreto, an asbestos handler employed by asbestos removal contractor P.A.L. Environmental Safety Corp. (PAL), allegedly sustained on-the-job injuries after falling through an uncovered manhole in Manhattan at a location owned by the City of New York (City), which had been leased by the City to the New York City Transit Authority (NYCTA). NYCTA, on behalf of the Metropolitan Transportation Authority (MTA), retained PAL to perform asbestos removal from electrical cables underneath city streets. PAL directly contracted with IMS Safety Inc. to serve as site safety consultant.

Prior to the commencement of the work, PAL employees constructed a three-sided wooden containment enclosure around the manhole. Plastic sheets were placed on the ceiling and the floor of the enclosure. The plastic sheet on the ceiling was stapled and glued to two two-by-fours, forming an “X” over, and framing, the enclosure. Two sets of double plastic sheets were hung in the open side of the enclosure approximately four feet apart. A circle was cut out of the plastic floor to account for the three-to-four-foot in diameter manhole. Two lights illuminated the enclosure.

Before the manhole cover was removed, an MTA foreman conducted an inspection to ensure that the electrical cables were not live. Due to the weight of the manhole cover, two PAL workers were required to remove the cover and place it outside the enclosure. IMS thereafter checked the underground air quality inside the open manhole and apprised PAL workers that it was safe to begin work. PAL workers descended approximately 10 feet by way of a ladder and began the asbestos removal work. At the conclusion of their shift, plaintiff and his coworkers were required to bring up the asbestos-filled bags, remove their protective equipment and the ladder, and replace the manhole cover before disassembling the containment enclosure.

PAL workers, including plaintiff, finished their shift at approximately 4:00 a.m. on the day of the accident. After plaintiff and his coworkers exited the manhole, they proceeded to break down the containment area “right away.” Plaintiff did not notice that the manhole remained uncovered, and, during the breakdown, the manhole cover remained outside the enclosure. According to plaintiff, the lights inside the enclosure had been turned off. As plaintiff walked toward the rear of the enclosure to disassemble the two-by-fours from the ceiling, he fell into the open manhole.

L

Plaintiff commenced this action against defendants IMS, City, NYCTA and MTA alleging violations of Labor Law §§ 200, 240 (1) and 241 (6) and common-law negligence. At the conclusion of discovery, all defendants moved for summary judgment to dismiss plaintiff’s complaint and any relevant cross claims asserted against them. Plaintiff cross-moved for partial summary judgment against all defendants on his section 240 (1) and 241 (6) claims, and for partial summary judgment against IMS, NYCTA and MTA on his common-law negligence and section 200 claims.

Supreme Court dismissed plaintiff’s complaint against all defendants on the ground that plaintiff was the sole proximate cause of his injuries because he disregarded his supervisor’s instructions by dismantling the containment enclosure before the manhole cover was replaced (2012 NY Slip Op 30858 [U] [Sup Ct, NY County 2012]). The court reasoned that had plaintiff waited for the manhole to be covered before commencing the deconstruction of the enclosure, he would not have fallen through the open manhole.

A divided Appellate Division affirmed, holding, as an initial matter, that IMS was not a statutory agent subject to liability under any of plaintiff’s theories because it lacked the authority to supervise plaintiff or his work (110 AD3d 630, 632 [1st Dept 2013]). The Court also dismissed plaintiff’s section 240 (1) claims against the remaining defendants, noting that plaintiff was provided with a “nearby and readily available” safety device, i.e., the manhole cover, and plaintiff’s own actions were the sole proximate cause of his injuries because he disregarded his supervisor’s instruction to replace the manhole cover before dismantling the containment enclosure (id.). It also dismissed the section 241 (6) claims because, in its view, none of the alleged Industrial Code violations proximately caused the accident (id. at 633). The common-law negligence and section 200 claims against NYCTA and MTA were dismissed because they neither had notice of the defect nor supervised plaintiff’s work (id. at 632-633).

The dissenting Justice agreed with the majority that IMS was not a statutory agent, but would have reinstated plaintiff’s Labor Law § 240 (1) claims against the City (as owner) and NYCTA and MTA because plaintiff was not the sole proximate cause of his injuries in light of the record evidence that it took at least two workers to move the manhole cover and because the lights may have been turned off before the deconstruction work had begun (id. at 634 [Feinman, J., dissenting in part]).

The Appellate Division certified to this Court the question whether its order affirming the order of Supreme Court was properly made (2014 NY Slip Op 63475[U] [1st Dept 2014]).

IL

Plaintiff is entitled to partial summary judgment against the City, NYCTA and MTA on his Labor Law § 240 (1) claims. Section 240 (1) provides, in relevant part:

“All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, [certain enumerated] and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”

The statute imposes upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]). “[W]here an accident is caused by a violation of the statute, the plaintiff’s own negligence does not furnish a defense”; however, “where a plaintiff’s own actions are the sole proximate cause of the accident, there can be no liability” (id.). Thus, in order to recover under section 240 (1), the plaintiff must establish that the statute was violated and that such violation was a proximate cause of his injury (see Zimmer v Chemung County Performing Arts, 65 NY2d 513, 524 [1985]).

The City, NYCTA and MTA do not contend on this appeal that the work plaintiff was engaged in at the time of the accident did not involve an elevation-related hazard, nor did IMS initially move for summary judgment on that ground. Therefore, we assume, for purposes of this appeal only, that plaintiff was engaged in work that posed an elevation-related risk.

On his motion for summary judgment, plaintiff met his burden of establishing the absence of an adequate safety device through the submission of the deposition testimony of IMS’s president, Joseph Mazzurco, who testified that there should have been a guardrail system around three sides of the open manhole while the containment enclosure was being dismantled. Plaintiff also established that the absence of guardrails was a proximate cause of the accident because had they been in place he would not have fallen.

The Appellate Division erred in holding that plaintiff’s conduct was the sole proximate cause of his injuries in light of the undisputed fact that it took at least two PAL workers to move the manhole cover (given its weight), and plaintiff’s testimony that the lights had been turned off prior to disassembly of the containment enclosure. Therefore, plaintiff’s conduct could not have been the sole proximate cause of his injuries, and plaintiff is entitled to partial summary judgment against the City, NYCTA and MTA on his section 240 (1) claims.

Supreme Court and the Appellate Division, having erroneously concluded that plaintiff was the sole proximate cause of his injuries, did not reach the merits of plaintiff’s Labor Law § 241 (6) claims against the City, NYCTA and MTA. Therefore, plaintiff’s section 241 (6) claims should be reinstated, and we remit the matter to Supreme Court so it may consider the summary judgment motions that were brought relative to those claims.

m.

The Appellate Division also erred in holding that IMS was not a “statutory agent” as a matter of law. Given Mazzurco’s testimony that it was part of IMS’s responsibility to ensure that a guardrail system was in place and the manhole cover was replaced once the system was removed, there is a question of fact concerning whether IMS was a “statutory agent” subject to liability under Labor Law § 240 (1) (see Walls v Turner Constr. Co., 4 NY3d 861, 863-864 [2005]; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 292-293 [2003] [no agency liability under section 240 (1) where responsibility for the activity that surrounded the injury was not delegated to a third party]). Moreover, MTA and NYCTA submitted the affidavit of a PAL supervisor who averred that one of IMS’s duties at the site was to ensure that the manhole was covered before PAL workers disassembled the containment enclosure, and that IMS had the authority to stop plaintiff from working in the area near the missing manhole cover. On this record, a jury could reasonably find that IMS “had the ability to control the activity which brought about the injury” (Walls, 4 NY3d at 863-864, citing Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318 [1981]).

For a similar reason, plaintiff’s common-law negligence and Labor Law §§ 200 and 241 (6) claims should be reinstated against IMS, as plaintiff raised triable issues of fact as to whether IMS, as a potential statutory agent, had the authority to supervise that portion of the work that brought about plaintiff’s injury (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 353 [1998] [common-law negligence and Labor Law § 200 claims]; Harris v Hueber-Breuer Constr. Co., Inc., 67 AD3d 1351, 1353 [2009] [Labor Law § 241 (6) claim]).

IV.

Finally, NYCTA and MTA met their respective burdens of establishing that they did not supervise or control plaintiffs work, or that neither of them had notice of the alleged dangerous condition or defect (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877-878 [1993]). Plaintiff failed to raise a triable issue of fact in that regard. Therefore, the Appellate Division properly dismissed plaintiffs common-law negligence and section 200 claims brought against NYCTA and MTA.

Accordingly, the order of the Appellate Division should be modified, with costs to plaintiff Raul Barreto, in accordance with this opinion and, as so modified, affirmed, and the certified question not answered as unnecessary.

Stein, J.

(dissenting in part). The majority and my dissenting colleague agree that the case should be decided as a matter of law; however, their opinions differ as to which of the parties should prevail. I take an alternative position and respectfully dissent, in part, because, in my view, triable questions of fact exist regarding whether defendants provided plaintiff with “proper protection” under Labor Law § 240 (1) and whether plaintiffs conduct was the sole proximate cause of his injuries. Accordingly, I would hold that neither plaintiff nor defendants are entitled to summary judgment.

Labor Law § 240 (1) provides that

“[a] 11 contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, 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.”

When applicable, section 240 (1) imposes a nondelegable duty-on owners and contractors to furnish their employees with “proper protection.” Therefore, once a Labor Law § 240 (1) violation and proximate cause are established, a defendant cannot raise an injured employee’s contributory negligence as a defense (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]; see also Stolt v General Foods Corp., 81 NY2d 918, 920 [1993]; Bland v Manocherian, 66 NY2d 452, 461-462 [1985]; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 521 [1985]; Koenig v Patrick Constr. Corp., 298 NY 313, 317 [1948]).

Our Court has observed that “the Legislature’s intent [is] to . . . protect [ ] workers by placing ultimate responsibility for safety practices at building construction jobs ... 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 [internal quotation marks and citations omitted]). That is, the legislature intended “to force owners and contractors to provide a safe workplace, under pain of damages” (Blake, 1 NY3d at 286). Thus, we have “long held that ‘this statute . . . undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed’ ” (id. at 292, quoting Quigley v Thatcher, 207 NY 66, 68 [1912]).

Nevertheless, “the language of Labor Law § 240 (1) ‘must not be strained’ to accomplish what the Legislature did not intend” (id. at 292, quoting Martinez v City of New York, 93 NY2d 322, 326 [1999]) because “[t]he point ... is to compel contractors and owners to comply with the law, not to penalize them when they have done so” {id. at 286). Owners and contractors, therefore, have “ ‘strict’ or ‘absolute’ liability” only for those statutory violations that proximately cause an employee’s injury (id. at 289; see also Duda v Rouse Constr. Corp., 32 NY2d 405, 410 [1973]). Stated differently, where a plaintiff is the sole proximate cause of his or her injury, there can be no liability under section 240 (1) (see Blake, 1 NY3d at 290). This is because “it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff’s injury) to occupy the same ground as a plaintiff’s sole proximate cause for the injury” (id.).

Here, as acknowledged by both Judge Read in her dissent {see dissenting op at 447) and Justice Feinman in his dissent at the Appellate Division {see 110 AD3d 630, 634 [1st Dept 2013]), there is at least a question of fact regarding whether defendants provided plaintiff with “proper protection” by furnishing (or failing to furnish) him with an adequate safety device (Labor Law § 240 [1]). Moreover, IMS — not plaintiff and the other PAL workers — was charged with the responsibility to ensure that the manhole was covered. Notably, at the time of the accident, the IMS safety representative was sitting in his car a few feet away from the site. Therefore, even assuming that plaintiff disregarded safety instructions by disassembling the enclosure before the manhole was covered (see dissenting op at 446), there is a question of fact regarding whether the absence of the IMS representative, and his failure to ensure that the manhole cover was immediately replaced, contributed to the accident.

In any event, the adequacy of the manhole cover as a safety device is called into question by the testimony of IMS president Joseph Mazzurco. Mazzurco testified that an open manhole must be surrounded by a three-sided guardrail system to comply with safety standards. Although Mazzurco did not testify as an expert witness in this case, he had personal knowledge of the appropriate safety procedures at the site of plaintiffs accident because PAL hired IMS as the site safety contractor. Determining Mazzurco’s credibility is the province of the jury. Moreover, state and federal regulations support Mazzurco’s testimony (see Department of Labor Regulations [12 NYCRR] § 23-1.7 [b] [1] [i] [“(e)very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part”]; 29 CFR 1910.23 [a] [6] [“(w)hile the cover is not in place, the manhole opening shall be constantly attended by someone or shall be protected by removable standard railings”]). Because defendants failed to establish as a matter of law that they provided “proper protection” through adequate safety devices, their motions for summary judgment should be denied (cf. Stolt, 81 NY2d at 920; Zimmer, 65 NY2d at 523-524).

Additionally, other evidence presents an issue of fact regarding whether plaintiff’s conduct was the sole proximate cause of his accident. The record contains conflicting testimony concerning whether the area surrounding the manhole was illuminated at the time of the accident. Specifically, although plaintiff alleged that the lights had been turned off in the containment enclosure, the asbestos handler supervisor for the New York City Transit Authority testified that the lights were on after plaintiff fell into the manhole. This testimony raises a triable issue as to whether plaintiff could or should have observed that the manhole cover was missing when he fell.

My dissenting colleague contends that plaintiff was the sole proximate cause of his injuries because he disobeyed his supervisor’s instructions to cover the manhole before deconstructing the containment enclosure (see dissenting op at 446). While I agree that, as a general rule, a plaintiff is not entitled to summary judgment when he or she “received specific [safety] instructions . . . and chose to disregard those instructions” (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]), the facts here do not establish that plaintiff was the sole proximate cause of his injuries as a matter of law. To be sure, a jury could reasonably conclude that the accident would not have occurred if plaintiff had followed his supervisor’s instructions. However, a reasonable jury could also find that defendants’ failure to provide him with “proper protection,” combined with insufficient illumination — preventing plaintiff from discovering that the manhole was uncovered — was a proximate cause of plaintiff’s injuries. If the latter, plaintiff would, at most, be contributorily negligent for disregarding his supervisor’s instructions. As noted above, such contributory negligence is not a defense to a Labor Law § 240 (1) violation (Stolt, 81 NY2d at 920). Thus, it is for the factfinder — not this Court — to resolve the question of proximate cause.

In sum, I conclude that questions of fact exist regarding whether defendants provided plaintiff with “proper protection” and whether plaintiff’s conduct was the sole proximate cause of his injuries. Accordingly, I would modify by reversing the Appellate Division order insofar as it affirmed the grant of summary judgment to defendants, deny summary judgment to plaintiff and defendants, and remit to Supreme Court for further proceedings.

Read, J.

(dissenting). Plaintiff Raul Barreto, who worked as an asbestos handler for P.A.L. Environmental Safety Corp. (PAL), suffered on-the-job injuries when he fell into an open manhole because he failed to follow his supervisor’s instruction not to begin to disassemble the temporary wooden enclosure surrounding the manhole until its cover had been put back in place. Since plaintiff’s own actions were the sole proximate cause of his accident, the owners and general contractors — the City of New York (the City), the New York City Transit Authority (NYCTA) and the Metropolitan Transportation Authority (MTA) — are entitled to summary judgment dismissing plaintiffs Labor Law § 240 (1) claim. At a minimum, as Judge Stein points out, on plaintiffs theory of the case there exist questions of fact sufficient to deprive him of partial summary judgment on liability under section 240 (1), the remedy endorsed by the majority.

L

In January 2005, NYCTA and MTA were in the midst of the SONET (synchronous optical network) communications project, which entailed, in the phase then under way, removal of asbestos insulation from underground cables, which were accessed through several hundred individual manholes. The manholes led to confined underground spaces or chambers that were, on average, about 10 feet by 15 feet, anywhere from 10 to 40 feet underground. MTA/NYCTA hired PAL to remove the asbestos insulation from the cables and any asbestos-containing debris. PAL, in turn, retained IMS Safety Inc. as its site safety consultant. In January 2005, PAL was working in spaces accessed through manholes located along Lafayette Street in Lower Manhattan.

The asbestos abatement work began after dark and carried over into the early morning hours. On the shift beginning on January 8 and ending on January 9, 2005, plaintiff was a member of a five-person PAL crew working at manhole 8A on Lafayette Street. The PAL workers cordoned off the area where manhole 8A was located, apparently in or near a parking lane. PAL supplied a generator to power lights to illuminate the work area; specifically, four portable 500-watt halogen lights mounted at street-level on stands.

The PAL workers built a temporary wooden enclosure around the manhole. This enclosure was described variously as either an eight-by-eight-foot or nine-by-nine-foot square; i.e., the size of a small room or shed. As recounted by the MTA’s supervisor on the project, the PAL workers constructed three complete and one partial wall around the manhole by erecting and nailing together wooden panels, leaving a three-foot-wide opening on the incomplete side. They installed two-by-fours diagonally across the top of the enclosure, nailed them into the panels to brace the walls and glued and stapled heavy plastic to these wooden beams to create a ceiling; they placed a double layer of heavy plastic on the enclosure’s interior walls and floor (i.e., the street) and cut out the plastic around the manhole, which was three or four feet in diameter, to expose it.

When this preparatory work was complete, the PAL crew removed the manhole cover to an area outside the enclosure. The IMS safety inspector dropped a gas monitor into the manhole to measure carbon dioxide, oxygen and methane to make sure that the air in the confined underground space was safe to breathe. This monitor remained in place and was connected to an audible alarm to alert the IMS inspector, who was stationed outside the enclosure during the shift, if air quality ever deteriorated to unacceptable levels.

Once the IMS safety inspector confirmed that air quality was acceptable, the PAL workers placed a ladder in the manhole. The ladder extended two or three feet above the level of the enclosure’s floor, which was itself roughly 10 feet above the floor of the underground chamber reached through manhole 8A. The MTA cable foreman climbed down the ladder to make sure there were no high-tension (i.e., more than 600 volts) positive feeders present. Once he confirmed this was the case, the PAL workers put an air lock into place to cover the three-foot opening in the enclosure’s one partial wall, and descended the ladder into the underground space to begin asbestos removal. They were dressed in protective clothing (two complete suits), and were equipped with respirators and 300-watt portable halogen lights. The MTA supervisor and the MTA cable foreman remained at the work site, outside the enclosure, throughout the shift; they spelled each other so at least one of them was always watching the enclosure’s entrance at the air lock to make sure no member of the public intruded.

Once the PAL workers had completed their asbestos abatement work for the shift, they handed up or carted bagged asbestos-containing materials and any tools through the manhole opening into the enclosure. Then they pulled up the ladder. After the IMS safety inspector removed his monitoring equipment from the manhole opening, the PAL workers were supposed to take out the air lock, retrieve the manhole cover from outside the enclosure and cover the manhole. Only then were they required to disassemble the enclosure. The MTA supervisor testified that “[t]he lights are the last thing that they take down because they have to see. That’s a common practice. That’s the last thing they do.” After learning about plaintiff’s accident from the PAL supervisor, the MTA supervisor went to manhole 8A. He observed that both the 500-watt halogen lights and the 300-watt portable lights were present and illuminating the area.

IL

Plaintiff conceded that he knew that he and his coworkers were not supposed to dismantle the wooden enclosure until the cover for manhole 8A had been put back in place. Yet, on January 9, 2005, after the PAL crew completed asbestos abatement work in the underground chamber and plaintiff and his coworkers emerged from the manhole opening, he “right away” began disassembling the enclosure, contrary to his supervisor’s explicit instructions. Stated somewhat differently, plaintiff did not wait for the manhole to be covered, as he had on previous occasions and as he knew he was supposed to do. Plaintiff offered no explanation for his safety lapse, or for his assumption that the manhole must have been covered even though he admittedly was not advised by his supervisor that this was the case, and he did not see his coworkers replace the cover.

Specifically, plaintiff testified as follows:

“Q. Were you aware through your prior work at job sites involving asbestos removal in manholes, that the cover to the manhole should be replaced once the workers and materials were removed from the manhole?
“[Plaintiffs attorney.] Yes or no?
“[Plaintiff.] Yes.”

At another point in his deposition, plaintiff testified additionally as follows:

“Q. When you deconstructed the work area[,] what is the first thing that you do?
“[Plaintiffs attorney.] You mean on [January 9, 2005] or generally?
“Q. Generally?
“[Plaintiffs attorney.] Any manhole job generally?
“Q. Yes, just generally.
“[Plaintiff.] To cover the hole.
“Q. Then what would you do next, generally?
“[Plaintiff.] Remove plastic.”

And later, plaintiff was questioned and answered as follows:

“Q. On the date of your accident, at any time, did the supervisor from P.A.L. tell you that the manhole had to be covered, not by you, but just that it had to be covered before you began the deconstruction of the area?
“[Plaintiff.] Yes.
“Q. When?
“[Plaintiff.] When we began the break down.
“Q. That was the day of your accident, correct? “[Plaintiff.] Correct.
“Q. On the day before your accident, not on the day of your accident, but the day before your accident, did you ever see the manhole being covered by someone?
“[Plaintiff.] Clearly.
“Q. Did you ever cover the manhole with the cover on the days before your accident?
“[Plaintiff.] No.
“Q. Who would cover the manhole?
“[Plaintiff.] The supervisor would say who would cover it. I don’t know. . . .
“Q. On the days before your accident, not on the day of your accident, but on the days before your accident, when you would start deconstructing the work area, were the manholes covered?
“[Plaintiff.] Yes.
“Q. Would you usually wait for the manhole to be covered before you would start the deconstruction of the area?
“[Plaintiff.] Yes.
“Q. When you would wait for the manhole to be covered, where would you wait?
“[Plaintiff.] We would go to the area. There is two areas for decontamination, one area is where the curtains are [i.e., the air lock]. I don’t know who covered — then after it was covered the supervisor would tell us to go in and begin the deconstruction.
“[Plaintiffs attorney.] All I want to know from you, on previous manhole jobs, where would you wait for someone else to put the cover on, that is all that I wanted to know?
“[Plaintiff.] In the curtain area, at the curtain [i.e., in the air lock]. . . .
“Q. So, typically, you would wait in that area when they would place the manhole, cover the manhole; is that what you are telling me?
“[Plaintiff] Yes. . . .
“Q. The days before your accident, would you typically wait for the supervisor to say okay the manhole is covered before you began your deconstruction?
“[Plaintiff.] Yes.”

We have long held that “[ejven when a worker is not ‘recalcitrant,’ . . . there can be no liability under section 240 (1) when there is no violation and the worker’s actions . . . are the ‘sole proximate cause’ of the accident” (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290 [2003] [emphasis added]; see also Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35 [2004] [fact issue exists whether the plaintiff’s actions were the sole proximate cause of his injuries when he ignored his supervisor’s specific instruction to use an available safety line while climbing]). Here, the majority concludes that plaintiff established, through the testimony of IMS’s president, Joseph Mazzurco, that there was, in fact, a violation because “there should have been a guardrail system around three sides of the .open manhole while the containment enclosure was being dismantled,” and that “the absence of guardrails was a proximate cause of the accident because had they been in place [,] [plaintiff] would not have fallen” into the manhole (majority op at 433 [emphasis added]). This theory is flawed for several reasons.

First, Mazzurco did not testify as a safety expert. Rather, he described IMS’s role on this project, which he tended to diminish, and his guilty plea to federal mail and wire fraud charges based on alleged falsification of the qualifications and training of certain IMS employees. When asked if it “[w]ould ... be part of IMS’[s] responsibilities to insure that a manhole was covered . . . before PAL began working around the manhole above the surface — on the street level,” Mazzurco answered “hypothetically” that “ [i] f there is protection around [the manhole], then [it’s] not our responsibility because the manhole is protected.” When asked what he meant by protection, he responded “[s]ome sort of barricade system.”

Second, to the extent Mazzurco assumed there was, or should have been, a guardrail system in place around manhole 8A while it was open, he cited no state or federal regulation that compels this. Nor is such a measure mandated by the only regulations that plaintiff mentions; namely, 29 CFR 1910.23 {see 29 CFR 1910.23 [a] [6] [when the required standard manhole cover is not in place, an uncovered floor opening “shall be constantly attended by someone or shall be protected by removable standard railings” (emphasis added)]), and 29 CFR part 1926. The latter provision, which is part of OSHA’s safety and health regulations for construction, states at 29 CFR 1926.501 (“Duty to have fall protection”) as follows:

“(a) General.
“(1) This section sets forth requirements for employers to provide fall protection systems . . .
“(b) . . .
“(4) Holes.
“(i) Each employee on walking/working surfaces shall be protected from falling through holes (including skylights) more than 6 feet (1.8 m) above lower levels, by personal fall arrest systems, covers, or guardrail systems erected around such holes” (emphasis added).

And finally, the protection that the majority claims should have been provided (i.e., a “guardrail system around three sides of the open manhole while the containment enclosure was being dismantled”) makes no sense because the manhole was supposed to be covered before the PAL workers began to disassemble the enclosure. In fact, at no time were the PAL workers authorized or required to work in the vicinity of an open manhole. The cover was not removed until after they constructed the enclosure, at which point, upon receiving clearance from the IMS safety inspector and the MTA cable foreman, they climbed down through the manhole opening into the underground chamber, where they performed their asbestos abatement work. And the cover was to be replaced once they emerged from the manhole after completing their asbestos abatement work for the shift, and before they dismantled the enclosure. A guardrail system, whether installed before or after the PAL workers entered or after they exited the open manhole, would have protected no one other than an intruder, and the enclosure was under constant surveillance by either the MTA supervisor or the MTA cable foreman.

The majority also takes the position that plaintiffs conduct cannot have been the sole proximate cause of his injuries because “it took at least two PAL workers to move the manhole cover (given its weight),” and plaintiff testified “that the lights had been turned off prior to disassembly of the containment enclosure” (majority op at 433-434). With respect to the first point, this is not a case where a supervisor instructed an employee to use safety equipment that was unavailable or somehow unusable for its intended purpose. Plaintiff was never told to replace the manhole cover by himself, and whether it took two or more of the PAL workers in the five-person crew to replace the manhole cover is irrelevant.

In contending otherwise, the majority ignores the distinction we have made between the sole proximate cause and “recalcitrant worker” defenses (see Blake, 1 NY3d at 290; Cahill, 4 NY3d at 39-40; Weininger v Hagedorn & Co., 91 NY2d 958 [1998] [speaking in terms of sole proximate cause and not recalcitrance]; Robinson v East Med. Ctr., LP, 6 NY3d 550 [2006] [noting that the plaintiff did not avail himself of accessible safety devices, but phrasing the standard as one of sole proximate cause]; see also 85 NY Jur 2d, Premises Liability §§ 289, 290 [identifying sole proximate cause and “recalcitrant worker” as separate defenses to Labor Law § 240 (1) claims]). In sum, while recalcitrance is a sufficient predicate for sole proximate cause, it is not a necessary one.

There is to be sure a good argument that plaintiff was not a “recalcitrant worker” because he was unable, by himself, to lift the manhole cover. But plaintiff’s foreman instructed him not to begin dismantling the enclosure until the manhole cover had been replaced, and plaintiff disregarded this basic safety direction, which was the sole proximate cause of his accident: obviously, he would not have fallen into the underground chamber through the manhole opening if he had waited for the manhole to be covered, as he conceded he knew he was supposed to do, and had done on previous occasions. As we observed in Blake, “[extending [Labor Law § 240 (1)] to impose liability in such a case would be inconsistent with statutory goals since the accident was not caused by the absence of (or defect in) any safety device, or in the way the safety device was placed” (1 NY3d at 290). And it is certainly poor public policy to treat employers that direct their workers how to accomplish a task safely and make adequate safety equipment available just the same as employers that make little or no effort in this regard.

Finally, whether someone removed or turned off the 500-watt lights outside the enclosure or, for that matter, extinguished the portable 300-watt lights with which the workers were equipped is disputed. It is difficult to credit plaintiff’s testimony in this regard since the PAL workers themselves were responsible for setting up and taking down the lights; it is hard to believe that they wanted to work in relative dark, and equally hard to explain why a blackout occurred for the first time, according to plaintiff, on this occasion. More importantly, though, this disputed fact is beside the point. Dim or nonexistent lighting would, of course, lend greater credence to plaintiff’s testimony that he did not notice whether any of his coworkers had replaced the manhole cover or that it was missing, even though the crew was a small one working together in close quarters. It does not, however, explain why plaintiff proceeded to disassemble the enclosure without receiving the “okay” from his supervisor, which he testified that he had waited for in the past.

For all these reasons, I conclude that the City, NYCTA and MTA have shown their entitlement to summary judgment dismissing plaintiffs Labor Law § 240 (1) claim on the ground that plaintiffs conduct was the sole proximate cause of his injuries. And even on plaintiffs theory of the case, as Judge Stein shows, there exist facts from which a jury might find that an adequate safety device was nearby at the work site: that plaintiff both knew that the manhole cover was nearby and that he was expected to wait for it to be replaced before he began to dismantle the temporary enclosure; that he chose for no good reason to go ahead without waiting; and that if he had not made that choice, he would not have been injured (see Ca-hill, 4 NY3d at 40). Accordingly, I respectfully dissent.

Chief Judge Lippman and Judges Rivera and Fahey concur; Judge Stein dissents in part in an opinion in which Judge Abdus-Salaam concurs; Judge Read dissents and votes to affirm in an opinion.

Order modified, with costs to plaintiff Raul Barreto, in accordance with the opinion herein and, as so modified, affirmed, and certified question not answered as unnecessary.

       Plaintiff discontinued his common-law negligence and section 200 claims against the City.

       I, too, assume without deciding that the accident involved an elevation-related risk.

      . The question whether an uncovered manhole constitutes an elevated work site or presents an elevation-related hazard within the meaning of Labor Law § 240 (1) has divided the Appellate Division (compare Dos Santos v Consolidated Edison of N.Y., Inc., 104 AD3d 606, 608 [1st Dept 2013] [plaintiff who fell into an uncovered manhole suffered injuries “result(ing) from an elevation-related hazard that Labor Law § 240 (1) is intended to obviate”], and Allen v City of Buffalo, 161 AD2d 1134, 1134 [4th Dept 1990] [under the circumstances described, “the uncovered manhole through which decedent fell was an elevated worksite”], with Carey v Five Bros., Inc., 106 AD3d 938, 940 [2d Dept 2013] [injuries suffered by a worker who fell partially through an open manhole “did not arise in the context of the ‘special hazards’ against which (section 240 [1]) is designed to protect”]; see also Coleman v Crumb Rubber Mfrs., 92 AD3d 1128, 1129 [3d Dept 2012] [a worker injured when he partially fell through an unprotected opening in a permanent floor “was not performing his work at an elevation” or any task “warrant(ing) the use of the protective devices required by Labor Law § 240 (1)”]). For the reasons stated by the majority, I also assume, solely for purposes of this appeal, that plaintiff was engaged in work presenting an elevation-related risk when he was injured (see majority op at 433).

      . The air lock is the system of two plastic-curtained doorways separated by an estimated four feet described by plaintiff. The purpose of an air lock is to permit entrance and exit while restricting air movement between a contaminated area and an uncontaminated area (see 15 RCNY 1-02).


author: Pigott, J.

text:
    [34 NE3d 829, 13 NYS3d 319]
    In the Matter of State of New York, Respondent, v Robert F., Appellant.
    Argued March 23, 2015;
    decided May 14, 2015

      POINTS OF COUNSEL

      Michael D. Neville, Mental Hygiene Legal Service, Mineóla {Timothy M. Riselvato and Dennis B. Feld of counsel), for appellant.
    I. It was error to allow the State’s expert witness to electronically appear and testify via videoconference because an electronic appearance at a Mental Hygiene Law article 10 dispositional hearing is not permitted by the statute and the Supreme Court should have concluded that such an appearanee was deemed excluded by the legislature other than in a probable cause hearing. (Commonwealth of the N. Mariana Is. v Canadian Imperial Bank of Commerce, 21 NY3d 55; People v Finnegan, 85 NY2d 53; Matter of State of New York v Bernard D., 61 AD3d 567; Matter of Charles S., 60 AD3d 954; Matter of State of New York v Dale R., 25 Misc 3d 285; Weingarten v Board of Trustees of N.Y. City Teachers’ Retirement Sys., 98 NY2d 575; Matter of Hering v Clement, 133 App Div 293; Matter of State of New York v Anonymous, 79 AD3d 758.) II. Judiciary Law § 2-b (3) did not authorize the Supreme Court to permit the electronic appearance of the State’s witness and this Court’s ruling in People v Wrotten (14 NY3d 33, 37 [2009]) does not permit the electronic appearance of a witness and testimony via videoconference because, even if the additional testimony offered by Dr. Trica Peterson was deemed proper rebuttal, the State never argued, let alone proved, that there were exceptional circumstances justifying the electronic appearance. (Matter of Brown v Blumenfeld, 103 AD3d 45; Doe v Smith, 29 Misc 3d 530; Pajak v Pajak, 56 NY2d 394; People v Ricardo B., 73 NY2d 228.) III. The error was not harmless. (People v Crimmins, 36 NY2d 230; Chapman v California, 386 US 18; Fahy v Connecticut, 375 US 85; Marshall v Davies, 78 NY 414; Kapinos v Alvarado, 143 AD2d 332; Maglione v Cunard S.S. Co., 30 AD2d 784; Matter of State of New York v Rosado, 25 Misc 3d 380.)

      Eric T. Schneiderman, Attorney General, New York City {Jason Harrow, Barbara D. Underwood and Anisha S. Dasgupta of counsel), for respondent.
    I. Supreme Court properly exercised its discretion when it took Dr. Trica Peterson’s limited rebuttal testimony by live, two-way videoconference. (People v Wrotten, 73 AD3d 637; Matter of State of New York v John S., 23 NY3d 326; Vitek v Jones, 445 US 480; Matter of State of New York v Floyd Y., 22 NY3d 95; Matter of State of New York v Dale R., 25 Misc 3d 285; Matter of State of New York v Leon F, 84 AD3d 1098; Matter of Charles S., 60 AD3d 954; Matter of State of New York v Bernard D., 61 AD3d 567; Matter of Brown v Blumenfeld, 103 AD3d 45; United States v Baker, 45 F3d 837.) II. Any alleged error was harmless. (Matter of State of New York v John S., 23 NY3d 326.)
   OPINION OF THE COURT

Pigott, J.

In this Mental Hygiene Law article 10 proceeding, we hold that Supreme Court erred by permitting an expert witness to testify via electronic appearance on rebuttal without a showing by the State of exceptional circumstances, but that the error was harmless under the facts of this case.

In 1974, respondent Robert F. was convicted of sexual abuse in the first degree. He was adjudicated a youthful offender and sentenced to one year in prison. Four years later, while on parole following a robbery conviction, he was convicted of rape in the first degree and sentenced to 7 to 14 years in prison. In 1985, he pleaded guilty to sodomy in the second degree and was sentenced to 3 to 6 years in prison. He remained incarcerated pursuant to that conviction until 2001. In 2004, respondent pleaded guilty to sexual abuse in the first degree and was sentenced to five years’ imprisonment and five years of post-release supervision.

As respondent’s release date approached, the Attorney General, on behalf of the State of New York, commenced this article 10 proceeding seeking a determination that respondent is a detained sex offender requiring civil management.

In January 2011, respondent was tried before a jury on the issue of whether he suffered from a mental abnormality as defined by Mental Hygiene Law § 10.03 (i). The State’s expert witness, Dr. Trica Peterson, testified that, based on her evaluation of respondent and a review of his case history, he suffers from pedophilia, alcohol dependence and antisocial personality disorder and ultimately concluded that he suffers from a mental abnormality. Dr. Roy Aranda testified on respondent’s behalf that respondent did not satisfy the requisite criteria for a diagnosis of pedophilia, nor did he suffer from a personality disorder. The jury reached a unanimous verdict, finding that respondent’s condition constituted a “mental abnormality” that predisposes him to the commission of sexual offenses and makes it difficult for him to control such behavior (see Mental Hygiene Law § 10.03 [i]).

In January 2012, a dispositional hearing was held pursuant to Mental Hygiene Law § 10.07 (f), at which Dr. Peterson returned to testify on behalf of the State. She opined that respondent is currently a dangerous sex offender requiring confinement. Dr. Peterson focused primarily on respondent’s scores on the “Static-99” and “Static-99R” actuarial risk-assessment instruments, both of which are used to predict the likelihood of recidivism. Specifically, Dr. Peterson testified that respondent scored seven points on the Static-99, indicating a likelihood of recidivism 3.5 times higher than that of a “typical” sex offender with a score of two. On the Static-99R, which took into account respondent’s age, respondent scored six points, a relative risk approximately three times higher than a typical offender.

Respondent testified and acknowledged that he committed the sexual offenses for which he was previously convicted and expressed remorse for his conduct. With respect to the 1974 youthful offender adjudication for sexual abuse in the first degree, respondent revealed for the first time that the victim had been a stranger to him.

Supreme Court permitted the State to recall Dr. Peterson on rebuttal to testify as to the effect of respondent’s revelation on her assessment of his recidivism risk. Dr. Peterson did not return to court to testify. Rather, at the request of the State, and over respondent’s objection, she appeared and testified via live, two-way videoconference.

Dr. Peterson explained that, based on respondent’s admission at trial that the 1974 sexual abuse victim was a stranger, his scores on the Static-99 and Static-99R would increase by one point each, resulting in a score of eight on the Static-99 and a seven on the Static-99R. She then testified that respondent’s recidivism risk was “a little less than four times higher than the typical offender” and, by percentage, his recidivism risk was approximately 18.8% over a period of five years.

Supreme Court found that respondent suffers from a mental abnormality involving such a strong predisposition to commit sex offenses and such an inability to control behavior that he was likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility (see Mental Hygiene Law § 10.03 [e]). In its written decision, Supreme Court credited Dr. Peterson’s testimony and cited, among other things, the original Static-99 score of seven and Static-99R score of six. The court did not reference Dr. Peterson’s rebuttal testimony or the modified Static-99 and Static-99R scores. On June 11, 2012, Supreme Court issued an order finding that respondent was a dangerous sex offender and ordering his confinement.

Respondent appealed, arguing, inter alia, that Supreme Court improperly permitted Dr. Peterson to testify via electronic videoconferencing.

The Appellate Division affirmed, holding that “in the absence of an explicit prohibition, the trial court has the discretion to utilize live video testimony pursuant to its inherent power to employ innovative procedures where necessary to carry into effect the powers and jurisdiction possessed by it” (113 AD3d 691, 692 [2d Dept 2014] [internal quotation marks omitted]). It further held that Supreme Court’s “limited use of that power . . . was not an improvident exercise of discretion [and] . . . did not violate any [of respondent’s] constitutional right[s],” particularly since the hearing “was civil in nature” (id. at 692-693). This Court granted respondent leave to appeal (23 NY3d 902 [2014]) and now affirms, albeit on the ground that the error was harmless.

In People v Wrotten, we held that “the court’s inherent powers and Judiciary Law § 2-b vest it with the authority to fashion a procedure” whereby witnesses are permitted to testify via live, two-way television at trial (14 NY3d 33, 36 [2009]). Recognizing that “the Legislature has primary authority to regulate court procedure,” we further explained that “ ‘the Constitution permits the courts latitude to adopt procedures consistent with general practice as provided by statute’ ” (id. at 37, quoting People v Ricardo B., 73 NY2d 228, 232 [1989]). We observed that “[b]y enacting Judiciary Law § 2-b (3), the Legislature . . . explicitly authorized the courts’ use of innovative procedures where ‘necessary to carry into effect the powers and jurisdiction possessed by [the court]’ ” and, therefore, “courts may fashion necessary procedures consistent with constitutional, statutory, and decisional law” Wrotten, 14 NY3d at 37, quoting Judiciary Law § 2-b [3]). Inasmuch as “there [wa]s no specific statutory authority evincing legislative policy proscribing televised testimony” in criminal trials, the matter was properly left to Supreme Court’s discretion (Wrotten, 14 NY3d at 37-38).

In light of these principles, although Mental Hygiene Law article 10 contains no provision that expressly authorizes a trial court to permit testimony via electronic appearance in dispositional hearings (see generally Mental Hygiene Law art 10), we hold that Supreme Court has the discretion to utilize live, two-way video testimony pursuant to its inherent power, but only where exceptional circumstances so require, or when all parties consent.

The existence of a provision allowing a psychiatric examiner “upon good cause shown, to testify by electronic appearance in the court” in probable cause hearings held pursuant to section 10.06 (Mental Hygiene Law § 10.08 [i] [1]) does not automatically permit, nor does it necessarily preclude, the use of the same in other contexts. As we previously stated, express authorization of live video testimony in certain circumstances “leaves [unaffected] courts’ preexisting authority” to exercise discretion in permitting such testimony (Wrotten, 14 NY3d at 37-38). We see no compelling reason why a trial court should have this discretion pursuant to “its inherent powers as defined in the New York Constitution and Judiciary Law” in criminal trials, but not in Mental Hygiene Law proceedings (id. at 38). Thus, in accordance with our decision in Wrotten, we hold that permitting the two-way, live video testimony of Dr. Peterson on the State’s rebuttal was within the discretion of the court.

As we have previously explained, “[l]ive televised testimony is certainly not the equivalent of in-person testimony, and the decision to excuse a witness’s presence in the courtroom should be weighed carefully. Televised testimony requires a case-specific finding of necessity; it is an exceptional procedure to be used only in exceptional circumstances” (14 NY3d at 40).

Here, the State merely indicated that Dr. Peterson could not appear in court on short notice and was somehow limited by her remaining employment with an Office of Mental Hygiene facility. Permitting Dr. Peterson to deliver her testimony via videoconference over respondent’s objection without requiring a proper showing of exceptional circumstances was error.

We conclude, however, that the error was harmless in light of the overwhelming evidence presented by the State (cf. Matter of State of New York v John S., 23 NY3d 326, 348 [2014]). During the State’s case-in-chief, Dr. Peterson testified that, based on his Static-99 scores, respondent was at a high risk of recidivism. She further based her opinion on the fact that respondent had failed to progress in sex offender treatment, failed to prepare an adequate relapse prevention plan, and exhibited certain behaviors, which indicated that he would not be able to comply with the rules of the strict and intensive supervision and treatment program. Furthermore, Supreme Court’s written decision credited Dr. Peterson’s testimony brought forth during the State’s case-in-chief, which referenced only the original, lower Static-99 test results, and not the modified scores that were presented during her electronic rebuttal testimony.

Accordingly, the Appellate Division order should be affirmed, without costs.

Chief Judge Lippman and Judges Read, Rivera, Abdus-Sabaam, Stein and Fahey concur.

Order affirmed, without costs.

      . The original order of commitment under review here was superseded on October 30, 2014 by a new order holding that respondent is currently a dangerous sex offender requiring confinement. Assuming, as the State contends, that the matter was rendered moot, because the limited issue of whether a trial court has the authority to permit an electronic appearance during the dispositional phase of a Mental Hygiene Law article 10 proceeding is a significant issue which is likely to recur and evade review, the exception to the mootness doctrine would apply (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]; cf Matter of David C., 69 NY2d 796, 798 [1987]).

      . In Wrotten, the People presented expert testimony that the witness, whom they sought to have appear electronically, lived in California and was “85 years old, frail, unsteady on his feet, and with a history of coronary disease [such that he] could not travel to New York without endangering his health, and was therefore unavailable” (14 NY3d at 37).


author: Chief Judge Lippman. Pigott, J.

text:
    [34 NE3d 833, 13 NYS3d 323]
    In the Matter of the Estate of Robyn R. Lewis, Deceased. James Robert Simmons, Respondent; Meredith M. Stewart et al., Appellants.
    Argued March 25, 2015;
    decided June 4, 2015

      POINTS OF COUNSEL

      D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando, Bradley E. Keem and Elizabeth deV. Moeller of counsel), and Wittenburg Law Firm, LLC, Syracuse, for appellants.
    I. Petitioner failed to produce all of the Texas wills. (Matter of Davis, 45 Misc 554, 182 NY 468; Matter of Staiger, 243 NY 468; Crossman v Crossman, 95 NY 145; Matter of Fox, 9 NY2d 400; Matter of Philbrook, 185 AD2d 550; Matter of Gray, 143 AD2d 751; Scholen v Guaranty Trust Co., 288 NY 249; Fidelity & Guar. Ins. Corp. v Ballon, 280 App Div 373; Matter of Cooke, 147 Misc 528; Telaro v Telaro, 25 NY2d 433.) II. Decedent did everything within her power to revoke the Texas will. (Matter

      of Davis, 45 Misc 554, 182 NY 468; Matter of Singer, 13 NY3d 447; Matter of Bieley, 91 NY2d 520; Matter of Fabbri, 2 NY2d 236; Matter of Shinn, 7 Misc 2d 623; Matter of Goldsticker, 192 NY 35; Matter of Kennedy, 167 NY 163; Matter of Katz, 78 Misc 2d 790; Matter of Sharp, 68 AD3d 1182; Matter of Ensign, 103 NY 284.) III. Surrogate’s Court and the Appellate Division erred in not exercising their equity power. (State of New York v Barone, 74 NY2d 332; Matter of Baby Boy C., 84 NY2d 91; Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831; Matter of Cullen, 174 Misc 2d 236; Matter of Coffed, 59 AD2d 297; Patron v Patron, 40 NY2d 582; Mercury Bay Boating Club v San Diego Yacht Club, 76 NY2d 256.)

      Menter, Rudin & Trivelpiece, P.C., Syracuse {Julian B. Modesti and Teresa M. Bennett of counsel), for respondent.
    I. Petitioner sustained his burden as the proponent of the 1996 will. (Matter of Halpern, 76 AD3d 429; Bingham v New York City Tr. Auth., 99 NY2d 355; Misicki v Caradonna, 12 NY3d 511; McHale v Anthony, 41 AD3d 265; Crossman v Crossman, 95 NY 145; Matter of McGuigan, 10 Misc 2d 865; Matter of Charitou, 156 Misc 2d 952; Matter of Heyward, 13 AD2d 671; Oram v Capone, 206 AD2d 839; People v Erb, 59 AD3d 1020.) II. The purported lost will cannot — as a matter of law — revoke the 1996 will. (Matter of Barnes, 70 App Div 523; Matter of Kleefeld, 55 NY2d 253; Matter of Andrews, 195 Misc 421; Matter of McGill, 229 NY 405; Matter of Davis, 154 AD2d 461; Matter of Collins, 124 AD2d 48; Matter of Slade, 106 AD2d 914; Matter of Horton, 272 App Div 646; Matter of Vickery, 167 AD2d 828; Matter of Stege, 161 Misc 667.) III. New York law does not exclude petitioner as a beneficiary of decedent’s estate. (Matter of Coffed, 59 AD2d 297, 46 NY2d 514; Matter of North, 32 AD2d 862; Matter of Cullen, 174 Misc 2d 236.) IV. Surrogate’s Court and the Fourth Department properly exercised their broad discretion in denying appellants equitable relief. (Matter of Von Bulow, 63 NY2d 221; Jochum Bros., Inc. v Ridge-wood Pie Baking Co., Inc., 210 App Div 428; Calhoun v Millard, 121 NY 69; Seif v City of Long Beach, 286 NY 382; Kubli v Rosetti, 34 NY2d 68; Matter of Dane, 55 AD2d 224; Sinclair v Purdy, 213 App Div 439; Symphony Space v Pergola Props., 88 NY2d 466; Burns v McCormick, 233 NY 230; Matter of Greatsinger, 67 NY2d 177.) V. The dissent’s finding of “suspect” circumstances results from misconstruction of the facts. (Bar-one v Cox, 51 AD2d 115; Saber v 69th Tenants Corp., 107 AD3d 873.) VI. The Court should disregard any arguments presented for the first time in appellants’ reply brief. (O’Sullivan v O’Sullivan, 206 AD2d 960.)
   OPINION OF THE COURT

Chief Judge Lippman.

At the time of her death in March 2010, it appeared after a thorough search that decedent Robyn R. Lewis had left no will. Letters of estate administration were therefore issued to her parents, Meredith M. Stewart and Ronald L. Lewis, pursuant to SCPA 1001 (1) (d); although decedent had been married to James A. Simmons, the marriage ended without issue in 2007 when the couple divorced, leaving decedent’s parents as her sole distributees (see EPTL 4-1.1 [a] [4]). They, however, renounced their interest in decedent’s Clayton, New York residence in favor of decedent’s brothers Ronald L. Lewis, II and Jonathan Lewis. The Clayton property, which had been in decedent’s family for generations, would thus have passed to decedent’s blood relations but for the December 2010 filing in Jefferson County Surrogate’s Court of petitions to revoke the parents’ letters of administration and to admit to probate a will executed by decedent in Texas in 1996. That will bequeathed all of decedent’s property, real and personal, to her then husband James A. Simmons, and named him as the will’s executor. The will had been in the possession of the ex-husband’s mother who retrieved it from her dresser after her son informed her that he had learned during a recent Internet search of his former wife’s death some eight months before. The son brought the will to an attorney, and this proceeding was shortly commenced.

The present petitions, however, were brought not by the son but, nominally, by his father, James Robert Simmons. Although the son was disqualified by reason of his divorce from decedent from serving as her executor or taking under the proffered pre-divorce will (see EPTL 5-1.4 [a] [1], [3]), decedent’s former father-in-law, who was named in the will as decedent’s alternate executor and beneficiary, was not so disqualified under New York law, which governs the disposition of decedent’s New York real property, the sole asset of significant value in her estate. Objections to probate were filed by decedent’s parents and brothers.

During the ensuing probate proceedings, decedent’s ex-husband testified that the will offered for probate was one of a pair of reciprocal or “mirror” wills made by the then married couple. Those wills and several other instruments bearing on end-of-life decisions were, according to the former husband, executed during a single session at an attorney’s office in Texas in 1996. Each instrument, he said, was generated in quadruplicate, and although he described each set of four as composed of one original and three “copies,” the natural, albeit less than certain, import of his testimony was that each copy was intended to be a functional instrument. He testified,

“they were all done [the same day] at [the attorney’s] office, both the originals of course and the copies. And we planned from that day, Robyn and I, to leave one set at my parents’ house, one set at our Texas house, one set at the New York house and one set in a safe deposit box. That was all planned out before we sat down that day and ~ and signed all those signatures.”

Later in his testimony he explained, “we had four sets of everything at each house for a reason. We both traveled. We knew that one house could burn down, this, that and the other.” During the probate proceeding, testimony was also elicited from Marilew Barnes. Ms. Barnes had been decedent’s friend, neighbor and confidante. She had been given powers of attorney by decedent — both legal and medical — and had assisted decedent with financial and health-related matters during the period following her divorce when her ability to manage her own affairs was compromised by the debilitating and ultimately fatal sequelae of alcohol addiction. Ms. Barnes stated that it had been a priority of decedent’s to make a new will once her divorce became final, and that in the fall of 2007 decedent brought to her for her examination, and then discussed with her, what she understood to be a will that contained a provision revoking all prior wills and codicils. Nonetheless, as noted, no will was found during a diligent postmortem search of decedent’s home and possessions.

The Surrogate, while not skeptical of Ms. Barnes’s account as to what she saw and read, and while acknowledging “how the fact that the will [offered for probate] was drafted ten years prior to the decedent’s divorce raises suspicion in [objectants’] eyes as to whether the will truly reflects what the decedent would have wanted when she passed in 2010,” nevertheless understood himself to be bound to dismiss the objections to the 1996 will and to admit it to probate. This was because Ms. Barnes had not witnessed the signing of the evidently lost 2007 will and her testimony, therefore, could not prove that the will had been duly executed. Without proof of due execution, the lost will could not, in the Surrogate’s view, be given effect, even for the limited purpose of revoking the 1996 will. As to the ex-husband’s testimony indicating that the 1996 will had, by design, been executed in four equally functional counterparts to be kept separately at specified locations, among them decedent’s post-divorce Clayton, New York residence, the Surrogate noted only that “ [i] t is not clear from the testimony of the witnesses if the decedent and Mr. Simmons left the attorney’s office with four original instruments or one original and three copies.”

A divided Appellate Division affirmed the Surrogate’s decision and decree (114 AD3d 203 [2014]). This Court granted objectants’ motion for leave to appeal (23 NY3d 906 [2014]), and we now modify.

Preliminarily, we note that the lower courts properly refused to give revocatory effect to the lost will described by Ms. Barnes. Estates, Powers and Trusts Law § 3-4.1 (a) (1) (B), particularly as we have construed it in Matter of Coffed (46 NY2d 514, 519 [1979]), commands categorically that revocation of a will by a subsequent will or other writing may be accomplished only by executing the revoking instrument “with the formalities prescribed . . . for the execution and attestation of a will.” As we observed in Coffed, this requirement’s stringency has been deemed necessary to prevent fraud and flippancy in the making and revocation of testamentary instruments generally; its prophylactic utility would be largely undone if it were dispensable in the individual, seemingly sympathetic case (see id. at 519).

Although objectants’ claim of revocation by a subsequent writing was properly rejected, it does not follow that the 1996 will was proved. Indeed, the evidence before the Surrogate raised a most serious, and unresolved, question as to whether the 1996 will had been otherwise revoked, and while that question persisted the will should not have been admitted to probate.

A will may, of course, be revoked not only by means of a writing executed in the manner of a will, but by the testator’s act of destroying it with revocatory intent (EPTL 3-4.1 [a] [2] [A] [i]), which act achieves the revocatory purpose even if there remain will duplicates outstanding (Crossman v Crossman, 95 NY 145, 152 [1884]). That a testator has in fact revoked a will by destruction is strongly presumed where the will, although once possessed by the testator, cannot be found posthumously despite a thorough search (Matter of Fox, 9 NY2d 400, 407-408 [1961]; Matter of Staiger, 243 NY 468, 472 [1926]; Matter of Kennedy, 167 NY 163, 168-169 [1901]). The presumption, once raised, “stands in the place of positive proof” (Staiger, 243 NY at 472) and must be rebutted by the will’s proponent as a condition of probate (Matter of Fox, 9 NY2d at 407).

Here, the facts of record, adduced in critical part through the testimony of petitioner’s son, supported inferences that decedent executed her 1996 will in quadruplicate, with each document having been meant to possess the force of an original instrument; that one of the will duplicates was kept at the Clayton, New York home where decedent resided after her divorce; and that, after a thorough search, no will was found there. Plainly, these circumstances sufficed to raise the presumption that decedent revoked her 1996 will by destroying it. It is equally plain that that presumption was not rebutted. None of the other duplicate wills was produced or otherwise accounted for. And, although petitioner now urges that the unproduced duplicates were merely copies, the uncertain status of the will duplicates, although commented upon by the Surrogate, was never resolved. We are left then with a will admitted to probate upon a record sufficient only to disprove it.

It is precisely to avoid such an incongruous outcome that the governing rule of proceeding has long been that

“[a]s soon as it is brought to the attention of the surrogate that there are duplicates of a will presented to him for probate, it is proper that he should require [the] duplicates to be presented, not for the purpose of admitting [them] as separate instruments to probate, but that he may be assured whether the will has been revoked, and whether each completely contains the will of the testator” (Crossman, 95 NY at 152; and see e.g. Matter of Robinson, 257 App Div 405, 407 [4th Dept 1939]; Matter of Blackstone, 172 Misc 479, 484 [Sur Ct, NY County 1939]).

Here, it is manifest that the Surrogate’s attention was drawn to the existence of will duplicates, but the consequently arising issues as to the will’s validity were not resolved as they should have been in accordance with Crossman’s instruction. Petitioner was required not merely to exclude the possibility, but to rebut the legal presumption of revocation, sufficiently raised by the ex-husband’s testimony as to the existence of will duplicates, one of which had been kept, but was not found after decedent’s passing, at her post-divorce residence. The necessity of such a showing was in this matter highlighted by the circumstance that the 1996 will, reciprocally bequeathing all of decedent’s property to her then husband, reflected a testamentary design irretrievably bound up with the testator’s since terminated spousal status.

While the record in its present state would only support a denial of probate, we recognize that the crucial issues raised by the duplicate will testimony were not framed for resolution as they should have been and that this may have operated to deprive petitioner of a fair opportunity to avoid or rebut the presumption of revocation which otherwise must control the outcome of this proceeding. We therefore remand the matter to the Surrogate so that these pivotal issues can be fully litigated and determined.

Accordingly, the orders of the Appellate Division should be modified, without costs, by remitting to Surrogate’s Court for further proceedings in accordance with this opinion, and, as so modified, affirmed.

Pigott, J.

(concurring). While I agree with my colleagues that remittal to Surrogate’s Court is the appropriate result, I write separately to express my disagreement with the majority’s dicta, in the hope that this added language will not be misinterpreted as a holding by this Court and lead the Surrogate to believe the issue has already been decided.

The issue for the Surrogate to resolve on remittal is whether there were four original instruments or one original and three copies of the decedent’s will (see Roche v Nason, 185 NY 128 [1906]; Matter of Andriola, 160 Misc 775 [Sur Ct, Kings County 1936]). If the Surrogate determines that there were four original instruments, he must then decide whether the presumption of revocation was triggered and whether that presumption was rebutted (see Crossman v Crossman, 95 NY 145 [1884] [presumption]; Matter of Fox, 9 NY2d 400 [1961] [rebuttal]).

The majority discusses the ex-husband’s testimony and surmises that “the natural, albeit less than certain, import of [the ex-husband’s] testimony was that each copy was intended to be a functional instrument” (majority op at 460). The majority further states that “ex-husband’s testimony indicat [es] that the 1996 will had, by design, been executed in four equally functional counterparts to be kept separately at specified locations” (majority op at 461 [emphasis added]). In doing so, the majority, in essence, discredits the ex-husband’s testimony that he and the decedent executed “two wills, two power of attorneys and two directive to physicians,” and that there was only one original of “each six documents.” The quality and weight afforded to ex-husband’s testimony, as well as any other testimony, is clearly in the province of Surrogate’s Court. In other words, whether there were “four equally functional counterparts” of the decedent’s will is a question of fact that is left to be resolved by the Surrogate.

The majority then suggests, again in dicta, that

“the facts of record, adduced in critical part through the testimony of petitioner’s son, supported inferences that decedent executed her 1996 will in quadruplicate, with each document having been meant to possess the force of an original instrument', that one of the will duplicates was kept at the Clayton, New York home where decedent resided after her divorce; and that, after a thorough search, no will was found there [and that] [pjlainly, these circumstances sufficed to raise the presumption that decedent revoked her 1996 will by destroying it. It is equally plain that that presumption was not rebutted” (majority op at 462 [emphasis added]).

While the majority may claim that it is simply reading the record before it, this dicta may be viewed by some as a disguised holding. “However grievous the errors a court commits when it writes dictum disguised as holding, those errors would be neutralized if the next court would recognize the prior dictum as nonbinding and go on to grapple with and decide the issue” (see Pierre N. Leval, Madison Lecture, Judging under the Constitution: Dicta About Dicta, 81 NYU L Rev 1249, 1268-1269 [2006] [emphasis added]). I encourage the Surrogate’s Court to “grapple with and decide the” issues without consideration of the majority’s dicta.

Judges Read, Rivera, Abdus-Salaam and Stein concur; Judge Pigott concurs in result in a separate concurring opinion; Judge Fahey taking no part.

Orders modified, without costs, by remitting to Surrogate’s Court, Jefferson County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

      . Mr. Simmons senior made no bones about the fact that he was not the real party in interest. He testified that he was “not the [pjetitioner” and was “just along for the ride.”

      . He was, however, under Texas law, which provides in relevant part that
      “[i]f, after the testator makes a will, the testator’s marriage is dissolved by divorce, annulment, or a declaration that the marriage is void, all provisions in the will, including all fiduciary appointments, shall be read as if the former spouse and each

        relative of the former spouse who is not a relative of the testator failed to survive the testator, unless the will expressly provides otherwise” (Tex Estates Code Ann § 123.001 [b] [emphasis added]). After decedent’s divorce, her ex-husband’s father, petitioner, ceased to be her “relative” within the relevant definition of Texas law (see Tex Estates Code Ann § 123.001 [a]).

      . Decedent had been awarded the Clayton residence in the couple’s divorce settlement.