BURNS v. MARCELLUS LANES INC

Reset A A Font size: Print

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

Joseph BURNS, Plaintiff–Respondent, v. MARCELLUS LANES, INC., Defendant–Appellant.

1460

Decided: February 01, 2019

PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CURRAN, AND WINSLOW, JJ. SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KAREN J. KROGMAN DAUM OF COUNSEL), FOR DEFENDANT–APPELLANT. GOLDBLATT & ASSOCIATES, P.C., MOHEGAN LAKE (KENNETH B. GOLDBLATT, New York, OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum: Plaintiff commenced this action seeking damages for injuries that he sustained while removing snow and ice from the roof of a building owned by defendant after he fell from the bucket of a backhoe being used to lift him to the roof.  Defendant appeals from an order that, inter alia, denied that part of its motion for summary judgment seeking dismissal of the Labor Law § 240(1) cause of action, and granted plaintiff's cross motion for summary judgment with respect to liability on the Labor Law § 240(1) cause of action.  We affirm.

Labor Law § 240(1) “applies where an employee is engaged ‘in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure’ ” (Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d 526, 528, 770 N.Y.S.2d 682, 802 N.E.2d 1080 [2003] ).  We conclude that, contrary to defendant's contention, the removal of snow and ice from the roof of a commercial building, under these circumstances, constitutes a form of “cleaning,” thereby bringing it within the ambit of Labor Law § 240(1) (see Nephew v. Barcomb, 260 A.D.2d 821, 823, 688 N.Y.S.2d 751 [3d Dept. 1999]; see also Wicks v. Trigen–Syracuse Energy Corp., 64 A.D.3d 75, 79, 877 N.Y.S.2d 791 [4th Dept. 2009] ).

We reject defendant's contention that plaintiff was not injured by an elevation-related risk within the scope of Labor Law § 240(1).  Plaintiff established the necessary elements for liability under section 240(1) by submitting evidence that he suffered “harm directly flowing from the application of the force of gravity to an object or person” (Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993] [emphasis omitted] ), and defendant did not raise a question of material fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]; Zarnoch v. Luckina, 112 A.D.3d 1336, 1337, 977 N.Y.S.2d 521 [4th Dept. 2013] ).

Finally, contrary to defendant's contention, we conclude that plaintiff is entitled to summary judgment irrespective of whether his injuries were caused by the fall itself or by being struck by the backhoe in the moments immediately following the fall.  “To establish a prima facie case plaintiff need not demonstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable; it is sufficient that he demonstrate that the risk of some injury from defendants' conduct was foreseeable” (Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 562, 606 N.Y.S.2d 127, 626 N.E.2d 912 [1993] ).  “Thus, a plaintiff merely has to demonstrate that he or she was injured when an elevation-related safety device failed to perform its function to support and secure him from injury” (Ortega v. City of New York, 95 A.D.3d 125, 128, 940 N.Y.S.2d 636 [1st Dept. 2012] ).  Here, the safety equipment provided to plaintiff did not prevent him from falling; thus, the core objective of Labor Law § 240(1) was not met (see Gordon, 82 N.Y.2d at 561, 606 N.Y.S.2d 127, 626 N.E.2d 912).  Plaintiff's injury was a normal and foreseeable consequence of the failure of the safety equipment (see id. at 562, 606 N.Y.S.2d 127, 626 N.E.2d 912; see also Van Eken v. Consolidated Edison Co. of N.Y., 294 A.D.2d 352, 353, 742 N.Y.S.2d 94 [2d Dept. 2002] ).