Opinion
CA 03-00642
October 2, 2003.
Appeal from an order of Supreme Court, Genesee County (Noonan, J.), entered October 30, 2002, which granted plaintiff's motion for partial summary judgment on the issue of liability under Labor Law 240(1) and denied defendant's cross motion for summary judgment dismissing that claim.
OSBORN, REED BURKE, LLP, ROCHESTER (ROBERT T. DI GIULIO OF COUNSEL), FOR DEFENDANT-APPELLANT.
PAUL WILLIAM BELTZ, P.C., BUFFALO (KRISTOPHER A. SCHWARZMUELLER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, WISNER, AND KEHOE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied, the cross motion is granted and the Labor Law 240(1) claim is dismissed.
Memorandum:
Plaintiff commenced this action seeking damages for injuries that he sustained in a construction accident while descending a scaffolding in order to leave the job site for the day. A brick that had been weighting down a plastic tarp covering a newly-laid section of brick wall fell approximately 30 feet, striking plaintiff in the face. Supreme Court erred in granting plaintiff's motion for partial summary judgment on the issue of liability under Labor Law 240(1) and in denying defendant's cross motion for summary judgment dismissing that claim. "[F]or section 240(1) to apply, a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute" ( Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 268 [emphasis in original]). "Absolute liability for falling objects under Labor Law 240(1) arises only when there is a failure to use necessary and adequate hoisting or securing devices. The absence of a necessary hoisting or securing device * * * did not cause the falling [brick] here" ( id. at 268-269; see Gampietro v. Lehrer McGovern Bovis, 303 A.D.2d 996; Bradley v. San-Gra Corp., 301 A.D.2d 709, 710-711). "Here, the [brick] was not being hoisted or secured when it fell, and we conclude that the hazard of [its being dislodged], causing the [brick] to fall on a worker, is not a hazard that was contemplated by Labor Law 240(1) ( see Narducci, 96 N.Y.2d at 267-268)" ( Gampietro, 303 A.D.2d at 997; see Bradley, 301 A.D.2d at 711). "This was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected" ( Narducci, 96 N.Y.2d at 268; see Roberts v. General Elec. Co., 97 N.Y.2d 737, 738).