Reset A A Font size: Print

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

Timothy CARROLL, et al., Plaintiffs-Respondents-Appellants, v. METROPOLITAN LIFE INSURANCE COMPANY, et al., Defendants-Appellants-Respondents.

Decided: August 12, 1999

SULLIVAN, J.P., TOM, LERNER and ANDRIAS, JJ. Fred J. Hirsh, for Plaintiffs-Respondents-Appellants. William E. Fay, III, for Defendants-Appellants-Respondents.

Order, Supreme Court, New York County (Carol Huff, J.), entered May 15, 1998, which, to the extent appealed from, denied defendants' motion for summary judgment insofar as it sought dismissal of plaintiffs' cause of action pursuant to Labor Law § 240(1), but which granted defendants' motion to the extent of dismissing plaintiffs' cause of action pursuant to Labor Law § 241(6), unanimously modified, on the law, to deny defendants' motion for summary judgment in its entirety, and to reinstate plaintiffs' Labor Law § 241(6), and otherwise affirmed, without costs.

 We agree with the motion court that the lack of evidence that plaintiff employee fell or was struck directly by a falling object is not fatal to his Labor Law § 240(1) cause of action, since the facts, as asserted by plaintiffs, suggest that the injuries were caused by a defective safety “device, ‘[that] proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object’ ” (Dominguez v. Lafayette-Boynton Hous. Corp., 240 A.D.2d 310, 312, 659 N.Y.S.2d 21, quoting 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, e.g., Skow v. Jones, Lang & Wooton Corp., 240 A.D.2d 194, 657 N.Y.S.2d 709).   We disagree with the motion court, however, as to its dismissal of plaintiff's Labor Law § 241(6) claim.   Based on evidence that a hand-cranked hoist, although expected to lock automatically with a click, did not do so, a triable issue of fact is raised as to whether the Industrial Code provision requiring “an effective pawl and ratchet” mechanism on manually-operated material hoists (see, 12 NYCRR 23-6.1 [j][1] ) was violated.   The duty imposed by the cited Code provision is sufficiently specific that its breach may serve as a ground for imposing liability pursuant to Labor Law § 241(6) (see, Mattison v. Wilmot, 228 A.D.2d 991, 992, 645 N.Y.S.2d 122, lv. dismissed, 89 N.Y.2d 917, 653 N.Y.S.2d 920, 676 N.E.2d 502;  cf, Narrow v. Crane-Hogan Structural Sys., 202 A.D.2d 841, 842, 609 N.Y.S.2d 372).   Moreover, unlike the situation here, in Brown v. New York City Economic Dev. Corp., 234 A.D.2d 33, 34, 650 N.Y.S.2d 213, which the motion court felt constrained to follow, the plaintiff's injury was unrelated to the hoisting device in use at the time.