IENCO v. RFD SECOND AVENUE LLC (2007)

In an action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Kings County (Partnow, J.), dated August 16, 2006, as denied that branch of their motion which was for summary judgment dismissing the plaintiffs' cause of action alleging a violation of Labor Law § 240(1).

ORDERED that order is affirmed insofar as appealed from, with costs.

The defendants hired Atlantic Heydt (hereinafter Atlantic), the employer of the plaintiff Ilario Ienco, to remove temporary elevators that had been used in the construction of a building.   In order to do so, Ienco and his partner had to loosen bolts from a 250-pound steel beam that was just above their heads, while standing on a 13-foot long and 1-foot wide aluminum plank, remove the beam from the column it was in, and then pass the beam to Atlantic workers who were standing approximately six feet below.   After they removed the bolts from one beam on the 20th floor, Ienco's partner removed his end of the beam from the column.   However, as Ienco struggled to remove the other end of the beam, it suddenly came free and struck him in his shoulder and arm causing him to sustain, inter alia, a broken elbow.   Once the beam struck Ienco, he began to lose his balance and fall, but he was able to stop his fall by bracing his right foot against a piece of metal.   In doing so, Ienco hit his head against a metal column sustaining a head injury.   Despite losing his balance and almost falling, Ienco managed to grab the beam, hold onto it, and then, with his partner, pass it to the Atlantic employees below.   According to Ienco's deposition testimony, he was not provided with a safety harness.   Ienco's foreman testified to the contrary at his deposition stating that, at the time of the accident, Ienco was tied to the building.

 Labor Law § 240(1) requires contractors and owners to provide workers with appropriate safety devices to protect against “such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured” (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82;  see Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267-268, 727 N.Y.S.2d 37, 750 N.E.2d 1085).   Here, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the plaintiffs' cause of action based on Labor Law § 240(1) under the “falling worker” theory of liability (see Narducci v. Manhasset Bay Assoc., supra at 267-268, 727 N.Y.S.2d 37, 750 N.E.2d 1085) as the defendants failed to satisfy their prima facie burden establishing their entitlement to judgment as a matter of law (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Ienco's deposition testimony raises a triable issue of fact as to whether he was provided with any safety devices such as a harness (see Pesca v. City of New York, 298 A.D.2d 292, 293, 749 N.Y.S.2d 26;  see also Cordero v. Kaiser Org., 288 A.D.2d 424, 425-426, 733 N.Y.S.2d 234;  Lacey v. Turner Constr. Co., 275 A.D.2d 734, 735, 713 N.Y.S.2d 207;  see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   As the Supreme Court correctly determined, “it is of no consequence that plaintiff allegedly sustained injuries as he prevented himself from falling further” (Ortiz v. Turner Constr. Co., 28 A.D.3d 627, 628, 813 N.Y.S.2d 770).

 The Supreme Court also correctly determined that the “falling object” theory of liability (see Narducci v. Manhasset Bay Assoc., supra at 267-268, 727 N.Y.S.2d 37, 750 N.E.2d 1085) under Labor Law § 240(1) was inapplicable.   The undisputed deposition testimony established that the height from which the beam fell was minuscule (see 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;  Jordan v. Blue Circle Atl., 306 A.D.2d 741, 743, 762 N.Y.S.2d 647;  Jacome v. State of New York, 266 A.D.2d 345, 346-347, 698 N.Y.S.2d 320;  Schreiner v. Cremosa Cheese Corp., 202 A.D.2d 657, 658, 609 N.Y.S.2d 322).   Moreover, the defendants satisfied their prima facie burden establishing that the beam did not fall, while being hoisted or secured, “because of the absence or inadequacy of a safety device of the kind enumerated in the statute” (Narducci v. Manhasset Bay Assoc., supra at 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085).   In opposition, the plaintiffs failed to raise a triable issue of fact (see Rosado v. Briarwoods Farm, Inc., 19 A.D.3d 396, 398-399, 796 N.Y.S.2d 394;  Gambino v. Massachusetts Mut. Life Ins. Co., 8 A.D.3d 337, 338-339, 777 N.Y.S.2d 713;  cf. Salinas v. Barney Skanska Constr. Co., 2 A.D.3d 619, 621, 769 N.Y.S.2d 559;  Stang v. Garbellano, 262 A.D.2d 853, 854, 692 N.Y.S.2d 229).

Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was for summary judgment dismissing the plaintiffs' Labor Law § 240(1) cause of action.