ACOSTA v. KENT BENTLEY APARTMENTS INC (2002)

Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered October 17, 2001, which granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim and denied defendants' cross motion to dismiss plaintiff's Labor Law and common-law negligence claims, unanimously modified, on the law, to grant defendant's cross motion to the extent of dismissing plaintiff's Labor Law § 200 claim, and otherwise affirmed, without costs.

 Plaintiff, pursuant to direction, was attempting to gain access to a retractable fire escape ladder at the second-floor level of the building in whose pointing he was engaged, to use the ladder as a means of ascending to his assigned work station on the fire escape platform on the building's fifth-floor level, when the ladder descended, trapping his hand.   Taking due cognizance of the manner in which the fire escape platforms and ladders were being utilized, i.e., to provide access to different elevation levels for the worker and his materials, the ladder whose fall occasioned plaintiff's injury is properly viewed as a safety device within the purview of Labor Law § 240(1) (see Hargobin v. K.A.F.C.I. Corp., 282 A.D.2d 31, 724 N.Y.S.2d 155;  cf.   Almanzar v. Goval Realty Corp., 286 A.D.2d 278, 729 N.Y.S.2d 133).   Further, since it is manifest that the ladder did not function properly as a device to afford plaintiff safe access to his elevated worksite, summary judgment was properly granted upon plaintiff's Labor Law § 240(1) claim (see Kirchner v. BRC Human Servs. Corp., 224 A.D.2d 270, 638 N.Y.S.2d 20;  see also Bataraga v. Burdick, 261 A.D.2d 106, 689 N.Y.S.2d 86).   That the ladder was permanently affixed to the building does not require a different result (see Kirchner, supra ).   Nor should the statute's protection be denied because plaintiff did not fall, since his “harm directly flow[ed] 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, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82;  see also Lacey v. Turner Constr. Co., 275 A.D.2d 734, 713 N.Y.S.2d 207).

 Plaintiff's Labor Law § 200 and common-law negligence claims should, however, have been dismissed since, inter alia, defendants did not exercise supervisory control over the work performed on the premises (see Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343, 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068).

Finally, summary judgment dismissing plaintiff's Labor Law § 241(6) claim alleging violation of 12 NYCRR 23-1.7(f) was properly denied (see Sponholz v. Benderson Prop. Dev., Inc., 273 A.D.2d 791, 792, 709 N.Y.S.2d 748).