JERAD ZARNOCH PLAINTIFF RESPONDENT APPELLANT v. ROBERT LUCKINA INDIVIDUALLY AND DOING BUSINESS AS ROB LUCKINA CONSTRUCTION DEFENDANT APPELLANT RESPONDENT (2013)

Supreme Court, Appellate Division, Fourth Department, New York.

JERAD M. ZARNOCH, PLAINTIFF–RESPONDENT -APPELLANT, v. ROBERT W. LUCKINA, INDIVIDUALLY AND DOING BUSINESS AS ROB LUCKINA CONSTRUCTION, DEFENDANT–APPELLANT -RESPONDENT.

CA 13–00824

Decided: December 27, 2013

PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.

ROSSI AND MURNANE, NEW YORK MILLS (VINCENT J. ROSSI, JR., OF COUNSEL), FOR DEFENDANT–APPELLANT–RESPONDENT. EDWARD C. COSGROVE, BUFFALO, FOR PLAINTIFF–RESPONDENT–APPELLANT. Appeal and cross appeal from an order of the Supreme Court, Oneida County (Norman I. Siegel, A.J.), entered August 14, 2012 in a personal injury action. The order, inter alia, granted the motion of plaintiff for partial summary judgment on liability pursuant to Labor Law § 240(1) on the condition that, at trial, plaintiff was not determined to be a special employee of defendant, and granted that part of defendant's cross motion for summary judgment dismissing the complaint with respect to the Labor Law § 241(6) cause of action.

MEMORANDUM AND ORDER

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

Contrary to defendant's contention, we conclude that the court properly granted plaintiff's motion. Plaintiff met his initial burden by establishing that he “suffered harm that ‘flow[ed] directly from the application of the force of gravity’ “ to the wall that struck him (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7), and that his injury was “ ‘the direct consequence of [defendant's] failure to provide adequate protection against’ “ the gravity-related accident (DiPalma v. State of New York, 90 AD3d 1659, 1660, quoting Runner v. New York Stock Exch., Inc., 13 NY3d 599, 603; see Wilinski, 18 NY3d at 6; McCallister v. 200 Park, L.P., 92 AD3d 927, 928–929), and defendant failed to raise an issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562). We reject defendant's contention that the elevation differential was de minimis. Although the wall was at only a 30–degree angle from the ground when it fell on plaintiff, that elevation differential “cannot be viewed as de minimis, particularly given the weight of the [wall] and the amount of force it was capable of generating, even over the course of a relatively short descent” (Runner, 13 NY3d at 605; see Wilinski, 18 NY3d at 10; DiPalma, 90 AD3d at 1660).

We reject defendant's further contention that the court erred in denying those parts of his cross motion seeking summary judgment dismissing the causes of action for common-law negligence and for the violation of Labor Law § 200. Contrary to defendant's contention, the hazard of being injured while lifting an 18–by–18–foot wall is not an “open and obvious hazard inherent in the ․ work” of a construction worker (Landahl v. City of Buffalo, 103 AD3d 1129, 1131 [emphasis omitted] ). Defendant's further contentions that plaintiff assumed the risk of lifting the wall and that lifting the wall was a superseding cause of plaintiff's injury are similarly without merit.

Frances E. Cafarell

Clerk of the Court

Was this helpful?

Easy to understand

Solved my problem

Other

Missing the information I need

Too complicated / too many steps

Out of date

Other

Welcome to FindLaw's Cases & Codes

A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.

Go to Learn About the Law