PERILLO v. LEHIGH CONSTRUCTION GROUP INC (2005)

Plaintiff, a demolition worker, was injured when a piece of a partition wall that had been partially demolished from the floor upward fell and struck him.   He commenced this action asserting causes of action for negligence and violations of Labor Law §§ 200, 240(1) and § 241(6) against, inter alia, Lehigh Construction Group, Inc., the general contractor (defendant) and Stephen B. McGarvey, LLC, the owner.   After joinder of issue and discovery, Supreme Court, inter alia, denied those parts of the motion of defendant that sought summary judgment dismissing the claims for the violation of sections 240(1) and 241(6) against it, and granted that part of plaintiff's cross motion that sought partial summary judgment on the issue of liability on the section 240(1) claim.

 The court erred in denying that part of defendant's motion that sought summary judgment dismissing the section 240(1) claim and in granting that part of plaintiff's cross motion that sought partial summary judgment on that claim, and we therefore modify the order accordingly.  “Labor Law § 240(1) applies where the falling of an object is related to ‘a significant risk inherent in ․ the relative elevation ․ at which materials or loads must be positioned or secured’ ” (Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267-268, 727 N.Y.S.2d 37, 750 N.E.2d 1085, quoting Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932).   Further, “[a] plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute” (id. at 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085 [emphasis deleted] ).   Here, the remains of the partially demolished partition wall were not “materials or loads” that were being “hoisted or secured,” and thus section 240(1) does not apply (see id. at 267-268, 727 N.Y.S.2d 37, 750 N.E.2d 1085;  Bennett v. SDS Holdings, 309 A.D.2d 1212, 1213, 764 N.Y.S.2d 763;  Matter of Fischer v. State of New York, 291 A.D.2d 815, 815-816, 737 N.Y.S.2d 204;  see also Sierzputowski v. City of New York, 14 A.D.3d 606, 607, 789 N.Y.S.2d 214;  Sparkes v. Berger, 11 A.D.3d 601, 602, 783 N.Y.S.2d 390).

 Turning to the section 241(6) claim, we conclude that the court properly denied that part of defendant's motion that sought summary judgment dismissing that claim insofar as it is predicated on the alleged violation of 12 NYCRR 23-3.3(b)(3) and (c).  Those Industrial Code provisions are sufficiently specific to support a section 241(6) claim and are applicable to the facts herein (see Sierzputowski, 14 A.D.3d at 607, 789 N.Y.S.2d 214;   Salinas v. Barney Skanska Constr. Co., 2 A.D.3d 619, 622, 769 N.Y.S.2d 559;  Bald v. Westfield Academy & Cent. School, 298 A.D.2d 881, 882, 747 N.Y.S.2d 623;  Gawel v. Consolidated Edison Co. of N.Y., 237 A.D.2d 138, 655 N.Y.S.2d 351).   We further conclude, however, that the court should have dismissed the section 241(6) claim insofar as it is predicated on the alleged violation of 12 NYCRR 23-1.7(a) and 23-3.2(b), and we therefore further modify the order accordingly.  Section 23-1.7(a)(2) is inapplicable because plaintiff was “required to work or pass” in or through the area of the partially demolished wall, and 23-1.7(a)(1) is inapplicable because plaintiff's worksite was not “normally exposed to falling material or objects” (see McLaughlin v. Malone & Tate Bldrs., 13 A.D.3d 859, 861, 787 N.Y.S.2d 157;  Gampietro v. Lehrer McGovern Bovis, 303 A.D.2d 996, 997-998, 757 N.Y.S.2d 657;  Sears v. Niagara County Indus. Dev. Agency, 258 A.D.2d 918, 918-919, 685 N.Y.S.2d 558;  see also Quinlan v. City of New York, 293 A.D.2d 262, 262-263, 739 N.Y.S.2d 706).   Finally, section 23-3.2(b) is inapplicable here because that section pertains solely to the protection of the stability of “adjacent structures”;  it does not pertain to the protection of the stability of walls within the building or structure being demolished.

It is hereby ORDERED that the order so appealed from be and the same hereby is modified on the law by granting the motion in part and dismissing the Labor Law § 240(1) claim and the § 241(6) claim insofar as it is based upon the alleged violations of 12 NYCRR 23-1.7(a) and 23-3.2(b) against defendant Lehigh Construction Group, Inc. and denying the cross motion in its entirety and as modified the order is affirmed without costs.

MEMORANDUM: