KAMINSKI v. [And a Third Party Action]. (2008)

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered June 21, 2007, which, to the extent appealed from as limited by the brief, upon reargument, denied plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240(1) and § 241(6), and granted defendants' cross motion for summary judgment dismissing plaintiff's claims under § 240(1) and § 241(6), unanimously modified, on the law, plaintiff's motion for partial summary judgment granted as to his Labor Law § 240(1) claim and defendants' cross motion denied as to that claim, and otherwise affirmed, without costs.

 Plaintiff was injured when he attempted to realign a side panel of the sidewalk bridge he and his coworkers were constructing and the panel gave way and fell to the ground, taking him with it.   Defendants' failure to provide plaintiff with any safety device to protect him against the risk of a fall created by his need to lean over the side of the bridge to nail in the side panels leads to liability under Labor Law § 240(1) (see Felker v. Corning Inc., 90 N.Y.2d 219, 224, 660 N.Y.S.2d 349, 682 N.E.2d 950 [1997];  Oliveira v. Dormitory Auth. of the State of New York, 292 A.D.2d 224, 739 N.Y.S.2d 58 [2002];  Lightfoot v. State of New York, 245 A.D.2d 488, 666 N.Y.S.2d 706 [1997] ).   Contrary to defendants' contention, coworkers are not a safety device contemplated by the statute.

Industrial Code (12 NYCRR) § 23-5.1(j);  § 23-1.15;  § 23-1.7(b) and 23-1.22(c)(2) are not applicable to this case.