SMITH v. LeFROIS DEVELOPMENT LLC

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

Brenton C. SMITH and Jean Smith, Plaintiffs-Appellants, v. LeFROIS DEVELOPMENT, LLC, Defendant-Respondent.

Decided: April 28, 2006

PRESENT:  GORSKI, J.P., MARTOCHE, GREEN, AND PINE, JJ. Moran & Kufta, P.C., Rochester (Paul A. Marasco of Counsel), for Plaintiffs-Appellants. Damon & Morey LLP, Buffalo (Michael J. Willett of Counsel), for Defendant-Respondent.

 Plaintiffs commenced this action to recover damages for injuries sustained by Brenton C. Smith (plaintiff) when he was struck by a drift pin that fell from a steel beam approximately 20 feet above him.   At the time of the accident, plaintiff was working at ground level and his supervisor, the foreman on the construction project, had just raised the column supporting the steel beam approximately one inch by means of a forklift.   Supreme Court properly denied plaintiffs' motion seeking partial summary judgment on Labor Law § 240(1) liability and granted that part of defendant's cross motion seeking summary judgment dismissing that claim.   The evidence submitted by both parties establishes that the drift pin was not “a material being hoisted or a load [or object] that required securing for the purposes of the undertaking at the time it fell” (Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085;  cf. Outar v. City of New York, 5 N.Y.3d 731, 732, 799 N.Y.S.2d 770, 832 N.E.2d 1186), and “[t]his was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected” (Narducci, 96 N.Y.2d at 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085;  see Love v. New York State Thruway Auth., 17 A.D.3d 1000, 1001-1002, 794 N.Y.S.2d 166;  Eberhard v. Alexander Cent. School Dist., 309 A.D.2d 1169, 765 N.Y.S.2d 289).

 The court also properly granted that part of defendant's cross motion seeking summary judgment dismissing the Labor Law § 241(6) claim because the Industrial Code regulations relied upon by plaintiffs do not apply to this case (see Hennard v. Boyce, 6 A.D.3d 1132, 1133, 776 N.Y.S.2d 411).   Defendant established in support of its cross motion that 12 NYCRR 23-1.7(a) is inapplicable because the area in which plaintiff was working was not “normally exposed to falling material or objects” within the meaning of that section (12 NYCRR 23-1.7[a][1];  see Perillo v. Lehigh Constr. Group, 17 A.D.3d 1136, 1138, 795 N.Y.S.2d 808).  Section 23-1.27(d), which applies to objects raised by means of a jack, has no application to this case (see Wegner v. State St. Bank & Trust Co. of Conn. Natl. Assn., 298 A.D.2d 211, 212, 748 N.Y.S.2d 150), and 12 NYCRR 23-2.3 also has no application to this case because it applies to “the final placing of structural steel members” (12 NYCRR 23-2.3[a][1] ), which was not the task resulting in plaintiff's injuries (see Hasty v. Solvay Mill Ltd. Partnership, 306 A.D.2d 892, 894, 760 N.Y.S.2d 795).   Plaintiffs have failed to address in their brief on appeal the remaining regulations set forth in their bill of particulars with respect to section 241(6) and thus have abandoned any reliance on them (see Gampietro v. Lehrer McGovern Bovis, 303 A.D.2d 996, 998, 757 N.Y.S.2d 657).

Finally, the court properly granted that part of defendant's cross motion seeking summary judgment dismissing the common-law negligence cause of action and Labor Law § 200 claim.   Defendant established that it exercised no supervisory control over plaintiff's work, and plaintiffs failed to raise a triable issue of fact (see O'Connor v. Spencer [1997] Inv. Ltd. Partnership, 2 A.D.3d 513, 515, 769 N.Y.S.2d 276).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: