JAMISON v. COUNTY OF ONONDAGA

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

Jacquelyn JAMISON, Plaintiff-Appellant, v. COUNTY OF ONONDAGA, Defendant-Respondent.

Decided: April 29, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, KEHOE, MARTOCHE, AND HAYES, JJ. Stanley Law Offices, Syracuse (Robert A. Quattrocci of Counsel), for Plaintiff-Appellant. Costello, Cooney & Fearon, PLLC, Syracuse (Donald S. DiBenedetto of Counsel), for Defendant-Respondent.

Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries she sustained in a fall from a ladder.   Plaintiff's employer was contracted to drive pile in connection with the construction of a building at a waste management facility owned by defendant.   On the day of the accident, plaintiff's task was to walk around the construction site to monitor the air quality where workers were driving pile.   Upon being told that a crane operator had complained of fumes, plaintiff climbed up a ladder that was leaning against the crane so that she could talk to the crane operator.   When plaintiff proceeded down the ladder, it slipped and she fell.

 Supreme Court properly denied plaintiff's motion for partial summary judgment on the Labor Law § 240(1) cause of action and granted that part of defendant's cross motion for summary judgment dismissing that cause of action.   To come within the protection of section 240(1), the task that the plaintiff is performing must “entail a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured” (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932).   For those tasks, protective devices are required because of the difference between the elevation level of the required work and a lower level (see id.).   We agree with defendant that plaintiff's task did not involve an elevation-related risk within the meaning of section 240(1) (see Toefer v. Long Is. R.R., 4 N.Y.3d 399, 795 N.Y.S.2d 511, 828 N.E.2d 614, 2005 WL 756604 [Apr. 5, 2005];  Bond v. York Hunter Constr., 95 N.Y.2d 883, 884-885, 715 N.Y.S.2d 209, 738 N.E.2d 356;  DiBenedetto v. Port Auth. of N.Y. & N.J., 293 A.D.2d 399, 742 N.Y.S.2d 207, lv. denied 98 N.Y.2d 610, 749 N.Y.S.2d 1, 778 N.E.2d 552;  DePuy v. Sibley, Lindsay & Curr Co., 225 A.D.2d 1069, 1070, 639 N.Y.S.2d 207).

 The court erred, however, in granting that part of defendant's cross motion for summary judgment dismissing the Labor Law § 241(6) cause of action.   Plaintiff relied on an alleged violation of 12 NYCRR 23-1.21(b)(4) to support that cause of action.   While we agree with defendant that section 23-1.21(b)(4)(i) is inapplicable to the facts of this case, because the ladder at issue was not used as a regular means of access between floors or levels of a building or structure (see Spenard v. Gregware Gen. Contr., 248 A.D.2d 868, 871, 669 N.Y.S.2d 772), defendant failed to meet its initial burden of establishing that section 23-1.21(b)(4)(ii) does not apply (see Sprague v. Peckham Materials Corp., 240 A.D.2d 392, 394, 658 N.Y.S.2d 97;  see generally Bennett v. SDS Holdings, 309 A.D.2d 1212, 1213, 764 N.Y.S.2d 763);  and we thus modify the order accordingly.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying that part of the cross motion with respect to the Labor Law § 241(6) cause of action and reinstating that cause of action insofar as it is based upon the alleged violation of 12 NYCRR 23-1.21(b)(4)(ii) and as modified the order is affirmed without costs.

MEMORANDUM: