Case Summary : Antonio A. Simoes v. City of New York, 81 A.D.3d 514, 917 N.Y.S.2d 163 (1st Dept. 2011) (Feb. 17,2011).

Summary: Antonio A. Simoes v. City of New York, 81 A.D.3d 514, 917 N.Y.S.2d 163 (1st Dept. 2011) (Feb. 17, 2011). Plaintiff, at the time of the accident, was a flagman directing a manlift into position under the bridge that was being renovated. In an attempt to move the manlift, the plaintiff got into the aerial basket. While another manlift attempted to assist the movement of the first manlift, the first manlift tipped over with the plaintiff in the bucket. The court dismissed the §240(1) claim because the plaintiff was not performing a protected activity (i.e. duties of a flagman did not entail an elevation-related risk). The §241(6) claim was not dismissed because the plaintiff was in a construction area and the Industrial Code regulations were applicable.

Practice Note: Not all activities on a construction site are protected by §240(1).