HAWKINS v. CITY OF NEW YORK (2000)

Order, Supreme Court, Bronx County (George Friedman, J.), entered November 27, 1998, which granted defendants' motion for summary judgment dismissing plaintiff's causes of action based on Labor Law §§ 240(1) and 241(6), unanimously modified, on the law, the motion insofar as directed against the cause of action based on § 240(1) denied and that cause of action reinstated, and otherwise affirmed, without costs.

 Plaintiff construction worker was directed to go to the third floor of a school undergoing renovations and pull steel beams into the building.   Just prior to the accident, one steel beam was positioned at the third-floor level of the structure, supported on either side only by the walls and spanning a completely open area almost 30 feet long between the walls.   Plaintiff and his co-workers were not furnished with any hoists, ropes or any other devices to move or support the steel beams.   When pulled, the beam became free from the other side of the building and that end fell three stories towards the ground while the end near plaintiff pinned him against the wall, fracturing his left wrist and forearm and leaving him disabled.   The IAS court understood that the beam end which pinned plaintiff to the wall was a few feet above his worksite and, relying upon Rodriguez v. Margaret Tietz Center, 84 N.Y.2d 841, 616 N.Y.S.2d 900, 640 N.E.2d 1134 felt constrained to dismiss based on a finding that there was no elevation hazard involved.   Unlike Rodriguez, however, plaintiff had been working at an elevation of three stories and the force of gravity on the steel beam was clearly a “special hazard” within the meaning of § 240(1).   Here, the force of gravity operating on an unsecured object at an elevated height caused plaintiff's injuries and § 240(1) provides a cause of action (Panattoni v. Inducon Park Associates, Inc., 247 A.D.2d 823, 668 N.Y.S.2d 840;  Wensley v. Argonox Constr. Co., 228 A.D.2d 823, 644 N.Y.S.2d 355, appeal dismissed 89 N.Y.2d 861, 653 N.Y.S.2d 282, 675 N.E.2d 1235;  Sherman v. Babylon Recycling Center, 218 A.D.2d 631, 631 N.Y.S.2d 25, appeal dismissed, 87 N.Y.2d 895, 640 N.Y.S.2d 879, 663 N.E.2d 921).

 The IAS court properly dismissed plaintiff's Labor Law § 241(6) cause of action since the regulations upon which plaintiff relied are either insufficiently specific or plainly inapplicable.   12 NYCRR 23-1.5(a) and (c)(1) require “reasonable and adequate” protection and that machinery be in “good repair” and “safe”.   Such generic directives are insufficient as predicates for § 241(b) liability (Ross v. Curtis-Palmer, 81 N.Y.2d 494, 501-505, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Ferreira v. Unico, 262 A.D.2d 524, 692 N.Y.S.2d 445;  Thompson v. Marotta, 256 A.D.2d 1124, 685 N.Y.S.2d 168;  see McCormack v. Helmsley-Spear, 233 A.D.2d 203, 649 N.Y.S.2d 697;  Augello v. 20166 Tenants Corp., 251 A.D.2d 44, 673 N.Y.S.2d 664, lv. denied 1998 N.Y.App.Div. LEXIS 8996).   12 NYCRR 23-6.1 and 23-6.2 govern the use and maintenance of ropes and hoists but do not state when such safety devices must be used.   Since plaintiff was not using a hoist, there could be no violation of either regulation (Cardenas v. American Ref-Fuel, 244 A.D.2d 377, 664 N.Y.S.2d 453;  Smith v. Homart, 237 A.D.2d 77, 666 N.Y.S.2d 218).

MEMORANDUM DECISION.