NELSON v. (and a third-party action).

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

William NELSON, appellant, v. CIBA-GEIGY, et al., respondents (and a third-party action).

Decided: January 31, 2000

LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, WILLIAM C. THOMPSON and SONDRA MILLER, JJ. Brian S. Jones & Associates, Mineola, N.Y., for appellant. Rende, Ryan & Downes, LLP, White Plains, N.Y. (Wayne M. Rubin of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Rockland County (Weiner, J.), dated October 7, 1998, as denied his motion for partial summary judgment on his cause of action under Labor Law § 240(1) and granted that branch of the defendants' cross motion which was for summary judgment dismissing that cause of action.

ORDERED that the order is modified by deleting the provision thereof granting that branch of the cross motion which was for summary judgment dismissing the plaintiff's cause of action under Labor Law § 240(1) and substituting therefor a provision denying that branch of the cross motion;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

 The plaintiff was injured when he allegedly fell as he was transferring fireproofing material from one tractor-trailer truck to another.   The plaintiff was working on an elevated platform constructed of wooden planking which bridged the gap between the tailgates of the two trailers.   The plaintiff subsequently commenced this action claiming, inter alia, that the defendants violated Labor Law § 240(1).

 We agree with the plaintiff's contention that the court erred in dismissing his cause of action under Labor Law § 240(1).   This statute applies where there are “ ‘risks related to elevation differentials' ” (Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 561, 606 N.Y.S.2d 127, 626 N.E.2d 912, quoting Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932).   Such risks, though, “are limited to such specific gravity-related accidents as falling from a height” (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82).   While not every elevation related hazard is sufficient to state a cause of action under Labor Law § 240, here the plaintiff allegedly fell as he was walking across the elevated platform while transporting materials from one tractor-trailer truck to another.   This type of activity is a “special hazard” contemplated by the statute (Ross v. Curtis-Palmer Hydro-Elec. Co., supra, at 501, 601 N.Y.S.2d 49, 618 N.E.2d 82).   Therefore, the plaintiff stated a cause of action under Labor Law § 240(1) (see, Curley v. Gateway Communications, 250 A.D.2d 888, 672 N.Y.S.2d 523;  Orr v. David Christa Constr., 206 A.D.2d 881, 615 N.Y.S.2d 543;  Cox v. LaBarge Bros. Co., 154 A.D.2d 947, 547 N.Y.S.2d 167;  Gjertsen v. Mawson & Mawson, 135 A.D.2d 779, 522 N.Y.S.2d 891).

 To prevail upon such a cause of action, a plaintiff must show that he was not afforded the proper protection and that the absence of that protection was the proximate cause of his injuries (see, Alava v. City of New York, 246 A.D.2d 614, 615, 668 N.Y.S.2d 624).  “[T]he mere fact that [the plaintiff] fell off the scaffolding surface is insufficient, in and of itself to establish that the device did not provide proper protection” (Beesimer v. Albany Ave./Rte. 9 Realty, 216 A.D.2d 853, 854, 629 N.Y.S.2d 816;  see also, Alava v. City of New York, supra, at 615, 668 N.Y.S.2d 624).   Whether the device provided proper protection is a question of fact, except when the device collapses, moves, falls, or otherwise fails to support the plaintiff and his materials (see, Romano v. Hotel Carlyle Owners Corp., 226 A.D.2d 441, 641 N.Y.S.2d 50;  Basmas v. J.B.J. Energy Corp., 232 A.D.2d 594, 648 N.Y.S.2d 1007).   Here, inconsistent versions of how the accident occurred raise a question of fact as to the credibility of the plaintiff, and are insufficient to prove, as a matter of law, that the defendants' failure to provide the plaintiff with proper protection proximately caused his injuries (see, Alava v. City of New York, supra, at 615, 668 N.Y.S.2d 624;  Doo Won Choi v. B.H.N.V. Realty Corp., 240 A.D.2d 619, 659 N.Y.S.2d 1001;  Xirakis v. 1115 Fifth Ave. Corp., 226 A.D.2d 452, 453, 641 N.Y.S.2d 45).   Thus, the plaintiff is not entitled to summary judgment on his cause of action under Labor Law § 240(1).

MEMORANDUM BY THE COURT.

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