ALI v. SLOAN KETTERING INSTITUTE FOR CANCER RESEARCH (2019)

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about August 21, 2018, which, to the extent appealed from, granted defendants-respondents' and third-party defendant's motions for summary judgment dismissing the Labor Law §§ 240(1) and 241(6), claims and denied plaintiff's motion for partial summary judgment on the section 240(1) claim, unanimously modified, on the law, to deny defendants-respondents' and third-party defendant's motions as to the Labor Law § 240(1) claim, and grant plaintiff's motion, and otherwise affirmed, without costs.

Plaintiff was injured when an air conditioning system coil that weighed at least 300 pounds and was being transported secured to two dollies fell on his leg as he and three coworkers unloaded it from a truck.  After plaintiff and his coworkers had brought the coil to ground level on the truck's lift gate and were attempting to move it off the lift gate, a wheel of a dolly became caught in a gap on the lift gate, and the coil tipped over.

In view of the weight of the coil and the amount of force it was able to generate, even in falling a relatively short distance, plaintiff's injury resulted from a failure to provide protection required by Labor Law § 240(1) against a risk arising from a significant elevation differential (see Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 604–605, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009];  Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 10, 935 N.Y.S.2d 551, 959 N.E.2d 488 [2011];  Marrero v. 2075 Holding Co. LLC, 106 A.D.3d 408, 409, 964 N.Y.S.2d 144 [1st Dept. 2013] ).  Moving the coil safely required either hoisting equipment or a device designed to secure the coil against tipping or falling over (see Suwareh v. State of New York, 24 A.D.3d 380, 380–381, 806 N.Y.S.2d 524 [1st Dept. 2005];  Grant v. Solomon R. Guggenheim Museum, 139 A.D.3d 583, 584, 139 A.D.3d 583 [1st Dept. 2016];  see also Runner, 13 N.Y.3d at 604, 895 N.Y.S.2d 279, 922 N.E.2d 865).  No such equipment was provided.

The Labor Law § 241(6) claim was correctly dismissed.  Industrial Code (12 NYCRR) § 23–1.7(e)(1) is inapplicable as a predicate for liability under the statute because the lift gate of the truck was not a passageway (see Quigley v. Port Auth. of N.Y. & N.J., 168 A.D.3d 65, 67, 90 N.Y.S.3d 156 [1st Dept. 2018];  DePaul v. N.Y. Brush LLC, 120 A.D.3d 1046, 1047, 994 N.Y.S.2d 59 [1st Dept. 2014] ).  Industrial Code § 23–1.7(e)(2) is inapplicable because the accident was not caused by an accumulation of dirt or debris, scattered tools or materials, or a sharp projection.  Industrial Code § 1.28(b) is inapplicable because the accident was not caused by a defect in the dollywheel, which the evidence shows was in good working order (see Garcia v. 95 Wall Assoc., LLC, 116 A.D.3d 413, 983 N.Y.S.2d 237 [1st Dept. 2014] ).