PETERS v. KISSLING INTERESTS INC (2009)

 Plaintiff commenced this action seeking damages for injuries he sustained while he was standing on a window sill that was six inches wide and several feet above the floor and was attempting to remove the window trim with a pry bar.   A piece of loose trim on which plaintiff was pulling unexpectedly broke free from the window, and he began to fall backward off the window sill.   When plaintiff grabbed the window sash to prevent himself from falling, the window shattered and a piece of falling glass struck his wrist.   We agree with plaintiff that Supreme Court erred in granting that part of defendant's cross motion for summary judgment dismissing the Labor Law § 240(1) cause of action and instead should have granted that part of plaintiff's motion for partial summary judgment on liability on the Labor Law § 240(1) cause of action.   A worker is protected by Labor Law § 240(1) when he or she is subject to an elevation-related risk, and the failure to provide any safety devices to protect the worker from such a risk is a proximate cause of his or her injuries (see Striegel v. Hillcrest Hgts. Dev. Corp., 100 N.Y.2d 974, 978, 768 N.Y.S.2d 727, 800 N.E.2d 1093).  “The application of section 240(1) does not hinge on whether the worker actually hit the ground” (id.).   Rather, that section equally applies where the force of gravity requires the worker to act to prevent himself or herself from falling from an elevated worksite (see Ray v. Niagara Mohawk Power Corp., 256 A.D.2d 1070, 1071-1072, 682 N.Y.S.2d 758;  see also Ienco v. RFD Second Ave., LLC, 41 A.D.3d 537, 538-539, 840 N.Y.S.2d 792;  Montalvo v. J. Petrocelli Constr., Inc., 8 A.D.3d 173, 174-175, 780 N.Y.S.2d 558;  cf. Milligan v. Allied Bldrs., Inc., 34 A.D.3d 1268, 824 N.Y.S.2d 524).   Here, plaintiff met his burden of establishing that the lack of an appropriate safety device to protect him “from harm directly flowing from the application of the force of gravity ” was the proximate cause of his injuries as a matter of law and thus that he was protected by Labor Law § 240(1) (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82;  see Striegel, 100 N.Y.2d at 978, 768 N.Y.S.2d 727, 800 N.E.2d 1093).   Defendant failed to raise a triable issue of fact in opposition to the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, that part of the cross motion for summary judgment dismissing the Labor Law § 240(1) cause of action is denied, that cause of action is reinstated, and that part of the motion for partial summary judgment on liability on the Labor Law § 240(1) cause of action is granted.

MEMORANDUM: