| Davis v Wyeth Pharms., Inc. |
| 2011 NY Slip Op 06073 [86 AD3d 907] |
| July 28, 2011 |
| Appellate Division, Third Department |
| Michael D. Davis, Appellant, v Wyeth Pharmaceuticals, Inc., et al.,Respondents. |
—[*1] Whiteman, Osterman & Hanna, L.L.P., Albany (Christopher E. Buckey of counsel), forWyeth Pharmaceuticals, Inc., respondent. Towne, Ryan & Partners, Inc., Albany (Amanda R. Stern of counsel), for Stantec ConsultingGroup, Inc. and another, respondents. Kelly & Leonard, Ballston Spa (Thomas E. Kelly of counsel), for Landrock E&S Consulting,Inc., respondent.
Stein, J. Appeal from an order, an amended order and a second amended order of theSupreme Court (McGill, J.), entered December 6, 2010 and December 9, 2010 in ClintonCounty, which denied plaintiff's motion for leave to amend the complaint.
In the course of his employment as a construction laborer, plaintiff was injured while movinga filtration unit weighing in excess of 1,000 pounds within a building owned by defendant WyethPharmaceuticals, Inc. Plaintiff and a coworker had used two pallet jacks to hoist the unit 8 to 10inches off the floor in order to move it. With the unit sitting on the pallet jacks, plaintiff pulledand his coworker pushed the unit along. In the process of moving the unit horizontally across thefloor, plaintiff slipped and grabbed the unit, causing it to tip over and land on his leg as he fell tothe ground.
Plaintiff commenced this action against Wyeth and, subsequently, a separate action [*2]against defendants Stantec Consulting Group, Inc., StantecArchitecture, Inc., and Landrock E&S Consulting, Inc.—who Wyeth had hired to ensurethe safety and well-being of those persons lawfully at its facility—alleging negligence andviolations of Labor Law §§ 200 and 241 (6). Following consolidation of the actions,plaintiff served an amended complaint that contained an additional claim under Labor Law§ 240 (1). Failing to obtain the consent of all parties, plaintiff then moved for leave toamend the complaint (see CPLR 3025 [b]) and Supreme Court denied themotion.[FN1]Plaintiff now appeals[FN2]and we affirm.
While leave to amend a pleading " 'should be freely granted' " so long as no prejudice befallsthe nonmoving party and " 'the amendment is not plainly lacking in merit' " (Shelton v NewYork State Liq. Auth., 61 AD3d 1145, 1149 [2009], quoting Smith v Haggerty, 16 AD3d 967,967-968 [2005]), such a decision rests squarely in the discretion of the trial court and will not bedisturbed absent a clear abuse of discretion (see CPLR 3025 [b]; Swergold v Cuomo, 70 AD3d1290, 1294 [2010]; Leclaire v FortHudson Nursing Home, Inc., 52 AD3d 1101, 1102 [2008]). Here, assuming withoutfinding, as Supreme Court did, that the proposed amendment resulted in no prejudice todefendants, we agree with Supreme Court's determination that it was lacking in merit.
Labor Law § 240 (1) requires that contractors and owners provide adequate safetydevices to protect workers against elevation-related safety risks (see Zimmer v ChemungCounty Performing Arts, 65 NY2d 513, 521 [1985]; Sereno v Hong Kong Chinese Rest., 79 AD3d 1414, 1414 [2010];Johnson v Small Mall, LLC, 79AD3d 1240, 1241 [2010]). However, "not all gravity-related risks fall within the parametersof the statute" (Sereno v Hong Kong Chinese Rest., 79 AD3d at 1414; see LaborLaw § 240 [1]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 499-501[1993]) and, therefore, "not every object that falls on a worker[ ] gives rise to the extraordinaryprotections of Labor Law § 240 (1)" (Narducci v Manhasset Bay Assoc., 96 NY2d259, 267 [2001]). "[T]he single decisive question is whether [a] plaintiff's injuries were the directconsequence of a failure to provide adequate protection against a risk arising from a physicallysignificant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]).
Here, plaintiff argues that, in Runnerv New York Stock Exch., Inc. (13 NY3d 599, 603 [2009]), the Court of Appealschanged the law regarding what constitutes a significant elevation differential for purposes ofLabor Law § 240 (1), as a result of which this case falls within the purview of that statute.Specifically, plaintiff contends that, pursuant to Runner, the weight of a falling objectmust now be considered in determining whether a height differential is significant [*3]and that, given the weight of the object that fell on him, he has ameritorious cause of action. In our view, plaintiff's reliance on Runner is misplaced. InRunner, "the Court made it clear that it was not establishing any new principles, merelyexpounding on the governing principle enunciated almost 20 years previously" (Harris v City of New York, 83 AD3d104, 109 [2011]; see Runner v New York Stock Exch., Inc., 13 NY3d at 604),namely that " 'Labor Law § 240 (1) was designed to prevent those types of accidents inwhich the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield theinjured worker from harm directly flowing from the application of the force of gravity to anobject or person' " (Runner v New York Stock Exch., Inc., 13 NY3d at 604, quotingRoss v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501).[FN3]Thus, it remains the law "that the purpose of the strict liability statute is to protect constructionworkers not from routine workplace risks, but from the pronounced risks arising fromconstruction work site elevation differentials, and, accordingly, that there will be no liabilityunder the statute unless the injury producing accident is attributable to the latter sort of risk"(Runner v New York Stock Exch., Inc., 13 NY3d at 603).
Here, Supreme Court's determination that plaintiff's injury was not the result of a risk relatedto an elevation differential was supported by the record. We note that the object that resulted inplaintiff's injury was not being hoisted or secured (compare Narducci v Manhasset BayAssoc., 96 NY2d at 268; Mueller vPSEG Power N.Y., Inc., 83 AD3d 1274, 1275 [2011]; Cambry v Lincoln Gardens, 50 AD3d1081, 1083 [2008]) or otherwise being moved vertically from one elevation to another(see Runner v New York Stock Exch., Inc., 13 NY3d at 602). Rather, it was being movedhorizontally and tipped over because, when plaintiff slipped, he grabbed it and pulled it towardhim. Thus, it was not the elevation of the unit from the ground that presented a risk to plaintiff.Indeed, there is nothing in the record to indicate that the same result would not have occurred hadthe unit been sitting directly on the ground. Inasmuch as plaintiff's proposed Labor Law §240 (1) claim lacked merit, Supreme Court did not abuse its discretion in denying plaintiff'smotion to amend the complaint.
Plaintiff's remaining contentions have been examined and are either academic or unavailing.
Spain, J.P., Kavanagh, Garry and Egan Jr., JJ., concur. Ordered that the order, amended orderand second amended order are affirmed, with one bill of costs.
Footnote 1: Supreme Court amended itsorder twice to correct errors, but did not make any substantive changes to the original order.
Footnote 2: Although plaintiff's notice ofappeal from Supreme Court's original order dated November 10, 2010 is technically premature,as it was filed prior to the entry of that order, we will treat the notice of appeal as valid in theexercise of our discretion (see CPLR 5520 [c]; Matter of Loomis v Yu-Jen G., 81 AD3d 1083, 1084 [2011];People v Barrier, 58 AD3d 1086, 1087 n [2009], lv denied 12 NY3d 707 [2009]).
Footnote 3: The primary issue resolved inRunner was the extent to which a plaintiff could recover in a falling object case when theobject and the plaintiff did not actually make contact with one another (Runner v New YorkStock Exch., Inc., 13 NY3d at 604-605).