Summary
reversing denial of summary judgment to plaintiff who was trapped at his shoulders after falling through elevated plywood board
Summary of this case from Wallace v. Nat'l R.R. Passenger Corp.Opinion
May 13, 1999
Appeal from the Supreme Court, Bronx County (Lucindo Suarez, J.).
On August 20, 1992, plaintiff, an employee of Volmar Construction, Inc., was engaged in demolition and carpentry renovation at 279-287 Brook Avenue, in the Bronx, a City-owned building, when he was injured. As part of the project, the building's first, second and third floors had been removed. On that particular date, plaintiff was working at an elevated level on the fourth or fifth floor on a temporary plywood platform that was not attached to the walls or otherwise secured in any way. There was nothing between the level at which plaintiff was working and the basement. No safety devices were provided to prevent workers from falling from the platform. Immediately prior to the accident, plaintiff was engaged in throwing demolition debris into a pile of trash that eventually would be disposed of through a window chute. Immediately after plaintiff threw a beam onto a pile of debris, one of the beams at the top of the pile began to shift in plaintiff's direction, causing plaintiff, fearful for his safety, to make a small jump away from the moving beam. As he did so, the unsecured makeshift plywood floor gave way, creating an opening in the floor into which plaintiff fell. Plaintiff remained trapped to the level of his shoulders until his co-workers were able to free him. There is no evidence or other circumstance suggesting that the accident did not occur as plaintiff described it.
The motion court denied plaintiff's partial summary judgment motion, finding factual issues as to how plaintiff fell, where he was standing when he fell, whether his working assignment involved an elevation-related risk and "whether a possible breach of § 240 (1) was a proximate cause of plaintiff's accident." We reverse.
Although the unsecured plywood boards supporting plaintiff four stories above ground level are described by the parties as a floor, they served, conceptually and functionally, as an elevated platform or scaffold. In Rocovich v. Consolidated Edison Co. ( 78 N.Y.2d 509), the Court of Appeals determined that the contemplated hazards of Labor Law § 240 Lab.(1) were those related to the effects of gravity, which required protective devices because of either a difference between the elevation level of the required work and a lower level or the difference between the elevation level of materials and a lower level where a worker was present. Later, in Ross v. Curtis-Palmer Hydro-Elec. Co. ( 81 N.Y.2d 494), the Court limited the special hazards referred to in Rocovich (supra) to "such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured." (Supra, at 501.) It is well established that a partial fall through a hole caused by shifting boards of a scaffold is covered by Labor Law § 240 Lab.(1). (Laguna v. 285 Cent. Park W. Corp., 244 A.D.2d 241; Bennion v. Goodyear Tire Rubber Co., 229 A.D.2d 1003; Robertti v. Chang, 227 A.D.2d 542, 543, lv dismissed 88 N.Y.2d 1064; Carnicelli v. Miller Brewing Co., 191 A.D.2d 980.) Indeed, even if plaintiff had fallen through a hole in a permanent floor while performing construction work, the accident would be deemed gravity related and within the purview of section 240 (1). (Carpio v. Tishman Constr. Corp., 240 A.D.2d 234.)
Since the collapse of the floor constituted a prima facie violation of section 240 (1) (see, Richardson v. Matarese, 206 A.D.2d 353), plaintiff should be awarded partial summary judgment on liability pursuant to Labor Law § 240 Lab.(1).
Concur — Ellerin, P. J., Sullivan, Williams and Tom, JJ.