SCOTT WILD PLAINTIFF RESPONDENT v. MARRANO MARC EQUITY CORPORATION DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

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

Memorandum:  Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained when he fell into an excavation that was immediately adjacent to the area where he was applying siding to a house.   When plaintiff stepped onto a plank that partially covered the excavation, his foot slipped, causing him to fall into the excavation.   Supreme Court properly granted plaintiff's motion seeking partial summary judgment on liability with respect to the Labor Law § 240(1) claim.   Contrary to the contention of defendant, plaintiff's fall into an excavation from ground level is “ ‘the type of elevation-related risk for which Labor Law § 240(1) provides protection’ “ (Congi v Niagara Frontier Transp.   Auth., 294 A.D.2d 830, quoting Covey v Iroquois Gas Transmission Sys., 89 N.Y.2d 952, 954;  see Jiminez v. Nidus Corp., 288 A.D.2d 123;  Bockmier v. Niagara Recycling, 265 A.D.2d 897).   Contrary to defendant's further contention, the record establishes that the plank from which plaintiff fell was not being “used as a passageway or stairway” (Paul v. Ryan Homes, Inc., 5 AD3d 58, 60) but, rather, it “served as the functional equivalent of a scaffold” (id. at 61).

We have considered defendant's remaining contentions and conclude that they are without merit.

Patricia L. Morgan

Clerk of the Court