Cardenas V. BBM Constr. Corp.

133 A.D.3d 626 (2d Dept. 2015) November 12, 2015

The plaintiff was injured while manually lifting a beam after it had been hoisted up to, and released on, a scaffold where the plaintiff was standing. The plaintiff’s Labor Law §241(6) cause of action was predicated on a violation of 12 NYCRR 23-2.3(a), which provides that during the final placing of structural steel members, loads shall not be released from hoisting ropes until the members are securely fastened. The court granted the defendant’s motion to dismiss the plaintiff’s §240(1) claim, holding that the mere fact that a plaintiff is injured while lifting a heavy object does not give rise to liability, unless the injury arises from an elevation-related risk contemplated by the statute, which it did not in this case. The court denied the defendant’s motion as to §241(6) because it failed to establish that the underlying Industrial Code provision was inapplicable, that the section was applicable but not violated, or that the alleged violation did not proximately cause plaintiff’s injuries.

Practice Note: In denying the defendant’s motion as to §241(6), the court noted that because the defendant failed to establish its entitlement to summary judgment, the motion should be denied regardless of the sufficiency of the plaintiff’s opposing papers.

Topics: Gravity-Related Risk; Industrial Code Violations; Prima Facie Burden