WILSON v. NIAGARA UNIVERSITY

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

Earl D. WILSON, Plaintiff-Appellant-Respondent, v. NIAGARA UNIVERSITY, Defendant-Respondent-Appellant.

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., MARTOCHE, CENTRA, GREEN, AND PINE, JJ. Jeremy C. Toth, Buffalo, for Plaintiff-Appellant-Respondent. Walsh & Wilkins, Buffalo (Christopher E. Wilkins of Counsel), for Defendant-Respondent-Appellant.

Plaintiff commenced this action to recover damages for injuries he sustained during the course of his employment as a laborer on a mold remediation project.   The accident occurred when plaintiff descended into a three- to four-foot-deep crawlspace and stepped onto an overturned five-gallon bucket that was used by plaintiff and his coworkers to gain access to the crawlspace.   The bucket slipped out from under plaintiff, causing him to fall and injure his back.

 Supreme Court properly denied that part of defendant's motion seeking summary judgment dismissing the Labor Law § 240(1) claim.   Contrary to defendant's contention, plaintiff's fall was the result of “the type of elevation-related risk for which Labor Law § 240(1) provides protection” (Covey v. Iroquois Gas Transmission Sys., 89 N.Y.2d 952, 954, 655 N.Y.S.2d 854, 678 N.E.2d 466;  see Congi v. Niagara Frontier Transp. Auth., 294 A.D.2d 830, 741 N.Y.S.2d 629).   Further, the bucket from which plaintiff fell “served as the functional equivalent of a scaffold, ladder or other device enumerated in the statute” (Paul v. Ryan Homes, 5 A.D.3d 58, 61, 774 N.Y.S.2d 225).   We further conclude, however, that the court properly denied that part of plaintiff's cross motion seeking partial summary judgment on Labor Law § 240(1) liability because there is a triable issue of fact “whether stepladders ‘were available at the job site’ for plaintiff's use” (Notaro v. Bison Constr. Corp., 32 A.D.3d 1218, 1219, 821 N.Y.S.2d 715, quoting Montgomery v. Federal Express Corp., 4 N.Y.3d 805, 806, 795 N.Y.S.2d 490, 828 N.E.2d 592;  see generally Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550, 554-555, 814 N.Y.S.2d 589, 847 N.E.2d 1162).

 The court also properly denied that part of the cross motion of plaintiff seeking leave to amend his responses to interrogatories to allege additional Industrial Code violations in support of his Labor Law § 241(6) claim.   Although the case was ready for trial and we perceive “no ‘unfair surprise or prejudice’ to defendant” resulting from the proposed amendment (Ellis v. J.M.G., Inc., 31 A.D.3d 1220, 1221, 818 N.Y.S.2d 724), none of the additional regulations upon which plaintiff relies applies to the facts of this case (see Keavey v. New York State Dormitory Auth., 24 A.D.3d 1193, 807 N.Y.S.2d 769, affd. 6 N.Y.3d 859, 816 N.Y.S.2d 722, 849 N.E.2d 945). Finally, we conclude that the court erred in denying that part of defendant's motion seeking summary judgment dismissing the Labor Law § 241(6) claim insofar as it is based upon the alleged violation of 12 NYCRR 23-1.5(a), and we therefore modify the order accordingly.   That regulation sets forth a general standard of care and is not sufficiently specific to support a section 241(6) claim (see Maldonado v. Townsend Ave. Enters., Ltd. Partnership, 294 A.D.2d 207, 208, 741 N.Y.S.2d 696;  Basile v. ICF Kaiser Engrs. Corp., 227 A.D.2d 959, 643 N.Y.S.2d 854).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting that part of the motion seeking summary judgment dismissing the Labor Law § 241(6) claim insofar as it is based upon the alleged violation of 12 NYCRR 23-1.5(a) and dismissing that claim to that extent and as modified the order is affirmed without costs.

MEMORANDUM: