AVELINO v. (And a Third-Party Action.)

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

Michael AVELINO, Appellant, v. 26 RAILROAD AVENUE INC. et al., Respondents, et al., Defendant. (And a Third-Party Action.)

Decided: July 30, 1998

Before:  MIKOLL, J.P., MERCURE, PETERS, SPAIN and CARPINELLO, JJ. Linnan Law Firm (Kevin F. McCane of counsel), Albany, for appellant. Carter, Conboy, Case, Blackmore, Napierski & Maloney (Mark A. Rubeo of counsel), Albany, for Albany Pallet and Box Company, respondent. Rowley, Forrest, O'Donnell & Beaumont (David P. Miranda of counsel), Albany, for 26 Railroad Avenue Inc. and another, respondents.

Appeal from an order of the Supreme Court (Keegan, J.), entered August 28, 1997 in Albany County, which partially granted a cross motion by defendant Albany Pallet and Box Company Inc. for summary judgment dismissing the complaint against it.

At the time plaintiff sustained the injuries forming the basis for this action, he was acting within the scope of his employment with third-party defendant installing a dust collection system in the second-floor attic of a building occupied by defendant Albany Pallet and Box Company Inc. (hereinafter defendant).   While plaintiff was performing his work, a floor board gave way, causing plaintiff's leg to crash through the floor and plaintiff to injure his knee.   Supreme Court granted partial summary judgment in favor of defendant dismissing, as relevant here, plaintiff's cause of action predicated upon Labor Law § 240(1)1 on the ground that plaintiff was injured while stepping on a permanent attic floor and his injury was not the result of an elevation-related risk calling for a protective device.   Plaintiff appeals and we affirm.

Under plaintiff's analysis, any floor of any building, whether situated above, at or below ground level would constitute a scaffold giving rise to potential liability under Labor Law § 240(1).   Obviously, calling a floor a scaffold does not make it one and this court has for many years subscribed to the principle that a permanent structure such as a floor, stairway or passageway does not constitute a “tool” or “device” within the purview of Labor Law § 240(1) (see, Williams v. City of Albany, 245 A.D.2d 916, 666 N.Y.S.2d 800, appeal dismissed 91 N.Y.2d 957, 671 N.Y.S.2d 717, 694 N.E.2d 886;  Cliquennoi v. Michaels Group, 178 A.D.2d 839, 577 N.Y.S.2d 550;  but see, Seguin v. Massena Aluminum Recovery Co., 229 A.D.2d 839, 645 N.Y.S.2d 630).   We conclude that plaintiff did not succumb to the type of hazard that would have called for a protective device in the first instance, i.e., dangers incidental to an elevated worksite (falling worker) or from tools or materials positioned at a higher level (falling object) (see, Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 634 N.Y.S.2d 35, 657 N.E.2d 1318;  Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Francis v. Aluminum Co. of Am., 240 A.D.2d 985, 987, 659 N.Y.S.2d 903;  Sutfin v. Ithaca Coll., 240 A.D.2d 989, 989-990, 659 N.Y.S.2d 555;  compare, Richardson v. Matarese, 206 A.D.2d 353, 614 N.Y.S.2d 424;  Collins v. County of Monroe Indus. Dev. Agency, 167 A.D.2d 914, 561 N.Y.S.2d 995, lv. dismissed 77 N.Y.2d 874, 568 N.Y.S.2d 915, 571 N.E.2d 85).

Plaintiff's additional contention that Supreme Court abused its discretion in refusing to consider his motion for summary judgment has been considered and found to be unavailing.   In his opposition to defendant's motion, plaintiff had the opportunity to present all relevant evidence on the issue of defendant's liability under Labor Law § 240(1), and the evidence that was proffered conclusively defeats plaintiff's cause of action.

ORDERED that the order is affirmed, with one bill of costs.


1.   We note that plaintiff's brief does not address Supreme Court's dismissal of his Labor Law § 241(6) cause of action against defendant.

MERCURE, Justice.


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