FARMER v. CITY OF NIAGARA FALLS (1998)

Supreme Court erred in granting plaintiff's motion for partial summary judgment on liability under Labor Law § 240(1) and in denying defendant's cross motion for summary judgment dismissing that cause of action.   The evidence establishes that plaintiff was injured while attempting to climb over a two- to four-foot-high interior concrete wall situated on the second-floor deck of a building under construction.   Plaintiff had just cut a piece of lumber and was walking to the other side of the deck to join his co-worker.   Plaintiff testified that, as he stepped over the top of the wall, his right pant leg snagged on a protruding rebar, causing him to lose his balance and fall three or four feet.   Plaintiff injured his ankle when his left foot landed on some scrap lumber.

Plaintiff did not fall from an elevated worksite (see, Gaul v. Motorola, Inc., 216 A.D.2d 879, 880, 628 N.Y.S.2d 992).   In climbing over the wall, plaintiff was faced with “the usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law § 240(1)” (Rodriguez v. Tietz Ctr. for Nursing Care, 84 N.Y.2d 841, 843, 616 N.Y.S.2d 900, 640 N.E.2d 1134;  see, Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 489, 634 N.Y.S.2d 35, 657 N.E.2d 1318, rearg. denied 87 N.Y.2d 969, 642 N.Y.S.2d 197, 664 N.E.2d 1260).

Order unanimously reversed on the law without costs, motion denied, cross motion granted and Labor Law § 240(1) cause of action dismissed.

MEMORANDUM: