| Mentesana v Bernard Janowitz Constr. Corp. |
| 2007 NY Slip Op 07669 [44 AD3d 721] |
| October 9, 2007 |
| Appellate Division, Second Department |
| Anthony Mentesana, Appellant, v Bernard JanowitzConstruction Corp. et al., Defendants, and Beauce Atlas, Inc., Respondent. (And Third-PartyActions.) |
—[*1] Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Harry Steinberg and Steven B.Prystowsky of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (Davis, J.), dated July 31,2006, as, in effect, upon reargument, granted that branch of the motion of the defendant BeauceAtlas, Inc., which was for summary judgment dismissing the Labor Law § 240 (1) cause ofaction insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and, ineffect, upon reargument, that branch of motion of the defendant Beauce Atlas, Inc., which wasfor summary judgment dismissing the Labor Law § 240 (1) cause of action insofar asasserted against it is denied.
The plaintiff allegedly was injured while on a flatbed truck as he looked for certain pieces ofsteel on the truck which were to be installed at a construction site. As he bent over, a steel I-beamthat was being hoisted by crane came loose and fell, hitting another beam, which slid onto andcrushed the plaintiff's finger. The plaintiff testified at his deposition that someone else attachedthe I-beams to the crane, that he had never received instructions on the proper way to attach theI-beams to the crane, and that he had never before performed that particular task. He also testifiedthat the I-beams were elevated approximately three feet above his head when they came looseand fell.[*2]
The crane operator testified at his deposition that theplaintiff attached the I-beams to the crane improperly, and knew that they were attachedimproperly, but told the crane operator to hoist them anyway. He further testified that the plaintiffhad performed this task many times before, and knew that the foreman had instructed theplaintiff with respect to the proper method of attaching the I-beams to the crane. The craneoperator also stated that, after the plaintiff told him to hoist the I-beams without properlysecuring them, he complied, knowing that the beams were improperly secured. Further, he statedthat the I-beams were only one to two feet above the bed of the truck when they fell.
The plaintiff commenced this action against, among others, Beauce Atlas, Inc. (hereinafterBeauce), the steel fabricator on the construction project, asserting, inter alia, Labor Law §240 (1); § 241 (6); § 200, and common-law negligence causes of action. Beaucecross-moved for summary judgment dismissing the complaint insofar as asserted against it, andthe plaintiff cross-moved for summary judgment on the issue of liability on his Labor Law§ 240 (1) cause of action. In an order dated November 24, 2004, the Supreme Court, interalia, denied the plaintiff's cross motion for summary judgment on the issue of liability on hisLabor Law § 240 (1) cause of action, finding that Labor Law § 240 (1) did not applyto the plaintiff's accident. The court, however, failed to determine that branch of Beauce's crossmotion which was for summary judgment dismissing that cause of action insofar as assertedagainst it.
Thereafter, Beauce, in effect, moved, inter alia, for reargument of that branch of its priorcross motion which was for summary judgment dismissing the Labor Law § 240 (1) causeof action insofar as asserted against it. Beauce argued, inter alia, that the Supreme Court, inpreviously denying the plaintiff's cross motion for summary judgment on the issue of liability onhis Labor Law § 240 (1) cause of action, found that the statute did not apply to theplaintiff's accident, and therefore should have granted that branch of its prior cross motion whichwas for summary judgment dismissing that cause of action insofar as asserted against it.
In an order dated July 31, 2006, the Supreme Court, inter alia, in effect, upon reargument,granted that branch of Beauce's motion which was for summary judgment dismissing theplaintiff's Labor Law § 240 (1) cause of action insofar as asserted against it, reiterating itsprior finding that Labor Law § 240 (1) did not apply to the plaintiff's accident. We reverse.
Labor Law § 240 (1) imposes liability upon owners and contractors who fail, inaccordance with the statute, to provide or erect safety devices necessary to give proper protectionto workers exposed to elevation-related hazards (see Bonilla v State of New York, 40 AD3d 673 [2007]). In orderfor Labor Law § 240 (1) to apply, the "plaintiff must show more than simply that an objectfell causing injury to a worker. A plaintiff must show that the object fell while being hoisted orsecured, because of the absence or inadequacy of a safety device of the kind enumeratedin the statute" (Sierzputowski v City ofNew York, 14 AD3d 606, 607 [2005], quoting Narducci v Manhasset BayAssoc., 96 NY2d 259, 268 [2001]). "Not every worker who falls at a construction site, andnot every object that falls on a worker, gives rise to the extraordinary protections of Labor Law§ 240 (1). Rather, liability is contingent upon the existence of a hazard contemplated insection 240 (1) and the failure to use, or the inadequacy of, a safety device of the kindenumerated therein" (Narducci v Manhasset Bay Assoc., 96 NY2d at 267; see Ross vCurtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).
Here, triable issues of fact preclude summary judgment dismissing the plaintiff's Labor Law§ 240 (1) cause of action. These triable issues include the relative height of the I-beams[*3]when they fell (see Amo v Little Rapids Corp. 268AD2d 712, 715 [2000], mod on rearg 275 AD2d 565 [2000]; cf. Perron vHendrickson/Scalamandre/Posillico [TV], 22 AD3d 731, 732 [2005]; Jacome v Stateof New York, 266 AD2d 345, 346 [1999]; Schreiner v Cremosa Cheese Corp., 202AD2d 657 [1994]), whether there were safety devices available to the plaintiff or not, andwhether or not he had received instructions on how to attach the I-beams to the crane. Thus, ineffect, upon reargument, the Supreme Court should not have granted that branch of Beauce'smotion which was for summary judgment dismissing the Labor Law § 240 (1) cause ofaction insofar as asserted against it (see Amo v Little Rapids Corp., 268 AD2d at 712; Palacios v Lake Carmel Fire Dept.,Inc., 15 AD3d 461 [2005]; see also Bonilla v State of New York, 40 AD3d at673). Rivera, J.P., Covello, Balkin and McCarthy, JJ., concur.