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

Frank J. SUTFIN Jr., Respondent, v. ITHACA COLLEGE, Appellant.

Decided: June 26, 1997

Before CARDONA, P.J., and MERCURE, CREW, WHITE and CARPINELLO, JJ. Bernard M. Byrne (Sandra J. Sabourin, of counsel), Liverpool, for appellant. Williamson, Clune & Stevens (Paul D. Sweeney, of counsel), Ithaca, for respondent.

Appeal from that part of an order of the Supreme Court (Relihan Jr., J.), entered June 21, 1996 in Tompkins County, which, inter alia, denied defendant's cross motion for summary judgment dismissing plaintiff's Labor Law § 240(1) cause of action.

On October 7, 1993, plaintiff and a fellow worker were standing four feet apart on a five-story scaffold lowering planks from one level of the scaffold to another.   The fellow worker lost the grip of his end of the load, causing the planks to fall and pin plaintiff's arm between the planks and an outrigger.   At issue on appeal is the propriety of Supreme Court's order granting plaintiff summary judgment on his Labor Law § 240(1) cause of action against defendant.1

 Plaintiff claims that his injury “resulted directly from the operation of gravity on the planks, causing them to fall on [him]”.   Labor Law § 240(1) affords legal protection to those workers exposed to special hazards resulting from work-site elevation differentials (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500-501, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932).   In the absence of “a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured” (Rocovich v. Consolidated Edison Co., supra, at 514, 577 N.Y.S.2d 219, 583 N.E.2d 932), there is no basis for liability pursuant to Labor Law § 240(1) (see, Ross v. Curtis-Palmer Hydro-Elec. Co., supra;  Rocovich v. Consolidated Edison Co., supra ).   Unless a worker's injuries actually resulted from the kind of risk that brought about the need for a protective device in the first instance, there can be no Labor Law § 240 liability (see, Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 634 N.Y.S.2d 35, 657 N.E.2d 1318).   Applying these principles to the instant case, we find that plaintiff's cause of action under Labor Law § 240(1) fails and that Supreme Court erred in granting plaintiff summary judgment on this claim.

 In Misseritti v. Mark IV Constr. Co. (supra ), the Court of Appeals stated:

We have expressly held that “Labor Law § 240(1) was aimed only at elevation-related hazards and that, accordingly, injuries resulting from other types of hazards are not compensable under that statute even if proximately caused by the absence of * * * [a] required safety device ” (id., at 490, 634 N.Y.S.2d 35, 657 N.E.2d 1318, quoting Ross v. Curtis-Palmer Hydro-Elec. Co., supra, at 500, 601 N.Y.S.2d 49, 618 N.E.2d 82 [emphasis supplied] ).

Here, while the hazard causing plaintiff's injury, i.e., a fellow worker dropping his end of a heavy object, was tangentially connected with the effects of gravity (see, Ross v. Curtis-Palmer Hydro-Elec. Co., supra, at 501, 601 N.Y.S.2d 49, 618 N.E.2d 82), we find that plaintiff's injuries resulted from “the type of ‘ordinary and usual’ peril a worker is commonly exposed to at a construction site” (Misseritti v. Mark IV Constr. Co., supra, at 489, 634 N.Y.S.2d 35, 657 N.E.2d 1318).   Indeed, “[a]n object falling from a miniscule height is not the type of elevation-related injury that this statute was intended to protect against” (Schreiner v. Cremosa Cheese Corp., 202 A.D.2d 657, 657-658, 609 N.Y.S.2d 322;  see, Phillips v. City of New York, 228 A.D.2d 570, 571, 644 N.Y.S.2d 764).   Here, plaintiff was working at the same level as his fellow worker and the planks that caused the injury to his arm were located, at most, two feet above them (cf., Sheridan v. Beaver Tower, 229 A.D.2d 302, 303, 644 N.Y.S.2d 739, 741, lv. dismissed 89 N.Y.2d 860, 653 N.Y.S.2d 282, 675 N.E.2d 1235).

This case is nearly indistinguishable from Dupuy v. Hayner Hoyt Corp. (221 A.D.2d 901, 634 N.Y.S.2d 17, lv. dismissed 87 N.Y.2d 1056, 644 N.Y.S.2d 148, 666 N.E.2d 1062).   In that case, the plaintiff was injured when a fellow worker at ground level lost his grip on one end of a portable concrete conveyor.   The plaintiff was unable to continue holding the other end of the conveyor due to its weight and was struck by the conveyor, which knocked him down onto the scaffolding on which he was standing.   The Fourth Department held that “[b]ecause plaintiff did not fall from an elevated work site and the object causing his injury was at the same level as plaintiff, Labor Law § 240(1) does not apply” (id., at 901, 634 N.Y.S.2d 17).   We feel the same analysis applies to the facts of this case (see also, Rodriguez v. Margaret Tietz Ctr. for Nursing Care, 84 N.Y.2d 841, 843-844, 616 N.Y.S.2d 900, 640 N.E.2d 1134 [Labor Law § 240(1) inapplicable where a worker was struck in the knee by a 120-pound steel beam he was hoisting into place];  Butler v. Ithaca Coll., 231 A.D.2d 974, 647 N.Y.S.2d 650, affg. Sup. Ct., Chemung County, Oct. 5, 1995, Corning, J. [Labor Law § 240(1) inapplicable where a worker, while on a scaffold, was struck on the hand by a plank dropped by a co-worker] ).

The risk that, while moving heavy objects with another, a fellow worker might drop his or her end of the object existed regardless of whether plaintiff was on a scaffold (compare, Adamczyk v. Hillview Estates Dev. Corp., 226 A.D.2d 1049, 641 N.Y.S.2d 925;  Narrow v. Crane-Hogan Structural Sys., 202 A.D.2d 841, 842, 609 N.Y.S.2d 372).   Because plaintiff was not injured by a hazard contemplated by the statute, summary judgment should have been granted to defendant dismissing the Labor Law § 240(1) cause of action (see, Rodriguez v. Margaret Tietz Ctr. for Nursing Care, 84 N.Y.2d 841, 843-844, 616 N.Y.S.2d 900, 640 N.E.2d 1134, supra;  Butler v. Ithaca Coll., 647 N.Y.S.2d 650, 647 N.Y.S.2d 650, supra;  see generally, Kelleher v. Power Auth. of State of N.Y., 211 A.D.2d 918, 621 N.Y.S.2d 156 [a plaintiff injured when his hand became caught in a drill as he steadied himself on a ladder did not suffer a Labor Law § 240(1) elevation-related injury] ).

As a final matter, we are not persuaded that this court's prior decisions in Mattison v. Wilmot, 228 A.D.2d 991, 645 N.Y.S.2d 122, lv. dismissed 89 N.Y.2d 917, 653 N.Y.S.2d 920, 676 N.E.2d 502, Wensley v. Argonox Constr. Corp., 228 A.D.2d 823, 644 N.Y.S.2d 355, lv. dismissed 89 N.Y.2d 861, 653 N.Y.S.2d 282, 675 N.E.2d 1235 or Sasso v. NYMED Inc., 238 A.D.2d 799, 656 N.Y.S.2d 509 mandate a contrary result.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as granted plaintiff partial summary judgment and denied defendant's cross motion on the Labor Law § 240(1) cause of action;  cross motion granted to that extent, partial summary judgment awarded to defendant and said cause of action dismissed;  and, as so modified, affirmed.


1.   Although plaintiff also asserted violations of Labor Law §§ 200 and 241(6) in his complaint, these claims were dismissed by Supreme Court and no cross appeal has been taken by plaintiff.


CARDONA, P.J., and MERCURE, CREW and WHITE, JJ., concur.

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