ST LOUIS v. TOWN OF NORTH ELBA (2005)

Appeal from an order of the Supreme Court (Dawson, J.), entered August 5, 2004 in Essex County, which, inter alia, granted plaintiff's cross motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240(1).

Plaintiff was employed in the assembly and construction of a steel pipeline.   The pipe was being held in the jaws of a front-end loader at a height of approximately five feet above ground level so that workers standing at ground level could weld on new sections of pipe and clean the welds before the pipe was lowered into a trench.   This placed the pipe at chest level while plaintiff struck it with a hammer to remove excess welding material.   The jaws of the front-end loader inadvertently released and the pipe fell, striking and injuring plaintiff's legs and feet.   As a result, he commenced this action alleging violations of Labor Law §§ 200, 240(1) and § 241(6).   Following joinder of issue, defendants moved for summary judgment dismissing all three claims and plaintiff cross-moved for summary judgment on the issue of liability with respect to his Labor Law § 240(1) claim.   Supreme Court denied defendants' motion and granted plaintiff's cross motion, prompting this appeal by defendants.

 Defendants contend that plaintiff's claim for liability under Labor Law § 240(1) fails and should have been dismissed because there was no height differential between the level at which plaintiff was working and the level at which the pipe was being held. We agree.   In cases that involve falling objects, Labor Law § 240(1) applies “where protective devices are called for ․ because of a difference ․ between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured” (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932 [1991];  see e.g. Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 269-270, 727 N.Y.S.2d 37, 750 N.E.2d 1085 [2001];  Sutfin v. Ithaca Coll., 240 A.D.2d 989, 989-990, 659 N.Y.S.2d 555 [1997] ).   Where, as here, the falling object is positioned at the level where the worker is performing his or her work, the statute does not apply (see Melo v. Consolidated Edison Co. of N.Y., 92 N.Y.2d 909, 911, 680 N.Y.S.2d 47, 702 N.E.2d 832 [1998];  Jordan v. Blue Circle Atl., 306 A.D.2d 741, 743, 762 N.Y.S.2d 647 [2003];  Rissel v. Nornew Energy Supply, 281 A.D.2d 880, 880-881, 722 N.Y.S.2d 643 [2001];  Puckett v. County of Erie, 262 A.D.2d 964, 965, 693 N.Y.S.2d 780 [1999];  Malecki v. Wal-Mart Stores, 222 A.D.2d 1010, 1010, 635 N.Y.S.2d 888 [1995];  compare Heidelmark v. State of New York, 1 A.D.3d 748, 749, 766 N.Y.S.2d 742 [2003] [Labor Law § 240(1) applicable where a pipe fell from 10 feet above the injured worker's work level];  Ortlieb v. Town of Malone, 307 A.D.2d 679, 680, 763 N.Y.S.2d 174 [2003] [Labor Law § 240(1) applicable where the injured worker was positioned in a trench below the level of a pipe that rolled down a 15-foot slope and fell into the trench] ).   To the extent that this Court's decision in Gill v. Samuel Kosoff & Sons, 229 A.D.2d 824, 645 N.Y.S.2d 650 [1996] [a part of the hoisting device struck the injured worker] may be viewed as supporting a contrary result, it is no longer to be followed.

As a final matter, we agree with Supreme Court that defendants' motion for summary judgment dismissing plaintiff's claims under Labor Law §§ 200 and 241(6) was premature (see CPLR 3212[f];  Reohr v. Golub Corp., 242 A.D.2d 850, 851, 661 N.Y.S.2d 889 [1997] ).

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as granted plaintiff's cross motion and denied defendants' motion in its entirety;  plaintiff's cross motion denied and defendants' motion partially granted by dismissing the Labor Law § 240(1) cause of action;  and, as so modified, affirmed.

ROSE, J.

CARDONA, P.J., CREW III, MUGGLIN and KANE, JJ., concur.