FOUR-TON STEEL BLOCK, EVEN DROPPED SHORT DISTANCE, MAKES OUT N.Y.S. LABOR LAW "FALLING-OBJECT CLAIM" FOR INJURED WORKER

Court: Supreme Court, Appellate Division, First Department, New York

Case: Stephen Kempisty v. 246 Spring Street, LLC

Date: Feb. 9, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident lawyer)

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Order, Supreme Court, New York County, (Martin Shulman, J.) entered November 22, 2010, which denied plaintiff's motion for summary judgment on his Labor Law Sec. 241(6) claim based on violations of Industrial Code (12 NYCRR) Sec. 23-8.2(c)(3) and Sec. 23-8.1(f)(1)(iii), and deemed plaintiff's Sec. 241(6) claim based on violations of other sections of the Industrial Code abandoned, and, upon a search of the record, granted summary judgment to defendants dismissing plaintiff's Labor Law Sec. 240(1) claim, unanimously modified, on the law, to the extent of reinstating the Sec. 240(1) claim, granting plaintiff summary judgment on that claim, and reinstating the Sec. 241(6) claims deemed abandoned except for those premised on violations of Industrial Code Secs. 23-3.3, 23-3.4 and 23-6.1, and otherwise affirmed, without costs.

The motion court erred in finding that Labor Law Sec. 240(1) does not apply in this case because there was no appreciable height differential between plaintiff and the object being hoisted, a four‑ton steel block, that crushed plaintiff's foot. The elevation differential cannot be considered de minimis when the weight of the object being hoisted is capable of generating an extreme amount of force, even though it only traveled a short distance (see Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009]; see also Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 935 N.Y.S.2d 551, 959 N.E.2d 488 [2011]).

Having concluded that Sec. 240(1) applies, the question is whether or not defendants established the existence of an issue of fact sufficient to deny plaintiff summary judgment. They have not. Plaintiff established that the accident was proximately caused by the application of the force of gravity to the block. Plaintiff's expert asserts the block was not properly secured, through the use of tag lines or other safety devices, to prevent it from moving while being hoisted.

In opposition, defendants' expert merely attempts to shift proximate cause of the accident to plaintiff for walking in the path of the block, and he states, in conclusory fashion, that tag lines were not required to be used during the load test. This does not sufficiently challenge the conclusions of plaintiff's expert that the accident was the direct result of the application of gravity to the block.

Regarding plaintiff's Sec. 241(6) claim, we agree that defendants raised an issue of fact sufficient to defeat plaintiff's motion. The motion court providently exercised its discretion in considering the affidavit submitted from defendant's expert. Contrary to the motion court's determination, however, plaintiff did not abandon the Sec. 241(6) claim insofar as premised on the remaining Industrial Code sections. This case differs from Musillo v. Marist Coll., 306 A.D.2d 782, 784 n. 1, 762 N.Y.S.2d 663 [2003], upon which the motion court relied, insofar as here it was plaintiff who moved for summary judgment. Where a defendant so moves, it is appropriate to find that a plaintiff who fails to respond to allegations that a certain section is inapplicable or was not violated be deemed to abandon reliance on that particular Industrial Code section. However, that is not the case where the plaintiff is the moving party. Nevertheless we find, upon a search of the record, that the 241(6) claims premised on Sec. 23-3.3, which pertains to demolition by hand, Sec. 23-3.4, which pertains to mechanical methods of demolition, and Sec. 23-6.1, which, by its terms, does not apply to cranes, are inapplicable under the circumstances presented, and should be dismissed.

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