PREKULAJ v. TERANO REALTY INC (1997)

Order, Supreme Court, Bronx County (Howard Silver, J.), entered October 30, 1995, which awarded plaintiffs partial summary judgment on the issue of liability based on a claim under Labor Law § 240, while dismissing that portion of the claim based upon § 241(6), unanimously modified, on the law, to the extent of denying plaintiffs partial summary judgment on the § 240 claim, and otherwise affirmed, without costs.

Plaintiff Luigi Prekulaj injured his back while elevating bags of cement to the roof of a construction site by means of a forklift.   He had raised the forklift to a window opening, and then jumped onto the pallet to hand the bags through the opening to a co-worker on the roof, when the pallet suddenly tilted, causing him to lose his balance.   According to his deposition testimony (given with the help of an interpreter), he was “going down together with bag and steels” and would have fallen had it not been for the fact that his shoulder was close to the wall.   However, when he stiffened his body to protect the load he was manually lifting at the time, he felt something in his back give way with a “crack.”

Plaintiffs' claims were based on alleged violations of Labor Law §§ 200, 240 and 241.   Both parties moved for summary judgment.   The IAS Court granted so much of defendants' cross motion seeking dismissal of the claim under Labor Law § 241(6), for failure to cite specific violations of the Industrial Code, and that dismissal is not in dispute.   But plaintiffs were granted partial summary judgment under the absolute liability provisions of § 240, because “the force of gravity ․ caused both plaintiff and the load to move downward”, resulting in his injury when “the ‘scaffold’ tipped”.   The word “fall” was never mentioned in the court's decision, or, for that matter, in the deposition testimony.

 The question before us is whether absolute liability under § 240 requires some kind of fall by the injured party or another object on the elevated platform.   The statute was designed to prevent those types of accidents in which an elevated protective device proves inadequate to shield an injured worker from harm directly flowing from the application of the force of gravity to an object or person (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82).   Granted, every slip or loss of balance by an earthbound mortal while moving a heavy object is ultimately gravity-related, but that does not preclude an issue of fact as to whether a defect in the elevated structure proximately caused the injury (see, Ponce v. St. John's Cemetery, 222 A.D.2d 361, 636 N.Y.S.2d 28).   That is still the “core objective” of § 240(1) (Ross v. Curtis-Palmer Hydro-Elec. Co., supra, at 501, 601 N.Y.S.2d 49, 618 N.E.2d 82).

 Without doubt, the platform created by the pallet on the forklift constituted a hoist contemplated by § 240.   The fact that the injured plaintiff never fell off the platform is of no moment, as long as the injury resulted from an elevation-related hazard (cf., Rocovich v. Consol. Edison Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219, 583 N.E.2d 932).   A fall on an elevated platform may not necessarily be a risk related to elevation, and thus not contemplated by § 240 (Bonaparte v. Niagara Mohawk Power Corp., 188 A.D.2d 853, 591 N.Y.S.2d 576, appeal dismissed 81 N.Y.2d 1067, 601 N.Y.S.2d 584, 619 N.E.2d 662).   On the other hand, an injured party need not fall completely from the platform or device in order to recover under the absolute liability provisions of the statute (Gramigna v. Morse Diesel, 210 A.D.2d 115, 620 N.Y.S.2d 58).   It is not clear from the record whether this laborer's injury resulted from some defect in the forklift device, or was instead unrelated to the risk of elevation (see, Tambasco v. Norton Co., 207 A.D.2d 618, 615 N.Y.S.2d 539, lv. dismissed 85 N.Y.2d 857, 624 N.Y.S.2d 375, 648 N.E.2d 795).   The existence of material issues of fact as to how the forklift accident occurred should have precluded partial summary judgment on the claim as based on § 240 (Groves v. Land's End Hous. Co., 80 N.Y.2d 978, 592 N.Y.S.2d 643, 607 N.E.2d 790).

In light of our disposition, we need not reach the issue that the injured plaintiff was the only witness to the accident, except to note that such would not, on its own, preclude summary judgment for the plaintiff (Rodriguez v. New York City Hous. Auth., 194 A.D.2d 460, 599 N.Y.S.2d 263).

MEMORANDUM DECISION.