MILLARD v. HUEBER BREUER CONSTRUCTION COMPANY INC (2004)

Plaintiff commenced this action seeking damages for injuries that he sustained in an accident at a construction site, asserting, inter alia, claims under Labor Law § 240(1) and § 241(6).   The record establishes that plaintiff was injured while standing within the railed platform of a movable manlift, next to an unsecured load of sheetrock.   The sheetrock panels were positioned upright on the platform, long edge down, and were resting against the railing of the lift.   When another worker attempted to raise the platform, it tilted, and the sheetrock toppled onto or shifted against plaintiff's leg, fracturing it.

 Supreme Court properly denied plaintiff's motion for partial summary judgment on the issue of liability on the Labor Law § 240(1) claim and properly granted the cross motion of defendant Murnane Building Contractors, Inc. for summary judgment dismissing that claim against it and that part of the cross motion of defendant Hueber-Breuer Construction Company, Inc. (Hueber-Breuer) for summary judgment dismissing that claim against it.   Section 240(1) is intended to protect against those unique gravity-related hazards involving either “a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured ” (Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 491, 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 [emphasis added];  see Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 269, 727 N.Y.S.2d 37, 750 N.E.2d 1085;  Nieves v. Five Boro A.C. & Refrig. Corp., 93 N.Y.2d 914, 916, 690 N.Y.S.2d 852, 712 N.E.2d 1219;  Melo v. Consolidated Edison Co., 92 N.Y.2d 909, 911, 680 N.Y.S.2d 47, 702 N.E.2d 832).   Thus, under the circumstances of this case, plaintiff may not recover under section 240(1) as a matter of law (see Melo, 92 N.Y.2d at 911, 680 N.Y.S.2d 47, 702 N.E.2d 832;  Misseritti, 86 N.Y.2d at 490-491, 634 N.Y.S.2d 35, 657 N.E.2d 1318;  Rodriguez v. Margaret Tietz Ctr. for Nursing Care, 84 N.Y.2d 841, 843-844, 616 N.Y.S.2d 900, 640 N.E.2d 1134).

 The court also properly granted that part of the cross motion of Hueber-Breuer, the construction manager, for summary judgment dismissing plaintiff's claim under Labor Law § 241(6) against it.   Hueber-Breuer established that it was not authorized to supervise or control plaintiff or the injury-producing work, and plaintiff failed to raise a triable issue of fact concerning Hueber-Breuer's alleged liability as an agent of the owner (see Bateman v. Walbridge Aldinger Co., 299 A.D.2d 834, 835, 750 N.Y.S.2d 402, lv. denied 100 N.Y.2d 502, 761 N.Y.S.2d 595, 791 N.E.2d 961;  Phillips v. Wilmorite, Inc., 281 A.D.2d 945, 946, 723 N.Y.S.2d 590;  Krick v. Fluor Daniel, 236 A.D.2d 783, 653 N.Y.S.2d 886;  see also Russin v. Picciano & Son, 54 N.Y.2d 311, 318, 445 N.Y.S.2d 127, 429 N.E.2d 805).   In any event, the court's dismissal of the Labor Law § 241(6) claim was proper given plaintiff's failure to allege, much less submit proof of, the violation of a specific and applicable provision of the Industrial Code (see Schuler v. Kings Plaza Shopping Ctr. & Marina, 294 A.D.2d 556, 558, 743 N.Y.S.2d 141;  Cody v. Garman, 266 A.D.2d 850, 851, 697 N.Y.S.2d 792;  Charles v. City of New York, 227 A.D.2d 429, 430, 642 N.Y.S.2d 690, lv. denied 88 N.Y.2d 815, 651 N.Y.S.2d 16, 673 N.E.2d 1243;  Orr v. David Christa Constr., 206 A.D.2d 881, 882, 615 N.Y.S.2d 543;  see generally Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 503-505, 601 N.Y.S.2d 49, 618 N.E.2d 82).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: