BRAY v. STATE (2007)

In a claim to recover damages for personal injuries, the defendant appeals from an interlocutory judgment of the Court of Claims (Scuccimarra, J.), dated March 3, 2006, which, upon an order of the same court dated February 6, 2006, inter alia, denying that branch of its motion which was for summary judgment dismissing the claim to recover damages for violation of Labor Law § 240(1), and granting that branch of the claimant's cross motion which was for summary judgment on the issue of liability under Labor Law § 240(1), is in favor of the claimant on the issue of liability on the Labor Law § 240(1) claim.

ORDERED that the interlocutory judgment is reversed, on the law, with costs, that branch of the defendant's motion which was for summary judgment dismissing the claim to recover damages for violation of Labor Law § 240(1) is granted, that branch of the claimant's motion which was for summary judgment on the issue of liability on his claim to recover damages for violation of Labor Law § 240(1) is denied, the claim to recover damages for violation of Labor Law § 240(1) is dismissed, and the order dated February 6, 2006, is modified accordingly.

The defendant established its prima facie entitlement to summary judgment by demonstrating that the two-foot height from which the claimant had to operate a drill rig did not pose the type of “significant risk” (see Toefer v. Long Island R.R., 4 N.Y.3d 399, 408-409, 795 N.Y.S.2d 511, 828 N.E.2d 614;   Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219, 583 N.E.2d 932) or “exceptionally dangerous condition” (Misseritti v. Mark IV Const. Co., 86 N.Y.2d 487, 634 N.Y.S.2d 35, 657 N.E.2d 1318;  Rice v. Board of Educ. of City of N.Y., 302 A.D.2d 578, 580, 755 N.Y.S.2d 419;  Dilluvio v. City of New York, 264 A.D.2d 115, 118, 704 N.Y.S.2d 550, affd. 95 N.Y.2d 928, 721 N.Y.S.2d 603, 744 N.E.2d 138) contemplated by Labor Law § 240(1).   In opposition, the claimant failed to raise a triable issue of fact (see generally Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   Accordingly, the defendant was entitled to summary judgment dismissing the claim to recover damages for violation of Labor Law § 240(1).