| Amerson v Melito Constr. Corp. |
| 2007 NY Slip Op 09188 [45 AD3d 708] |
| November 20, 2007 |
| Appellate Division, Second Department |
| Steven Amerson et al., Appellants, v Melito ConstructionCorp. et al., Respondents. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of a judgment of the Supreme Court, Suffolk County (Baisley, J.),dated August 21, 2006, as, upon an order of the same court dated June 29, 2006, inter alia,granting that branch of the defendants' cross motion which was for summary judgmentdismissing so much of the second cause of action as alleged a violation of Labor Law §241 (6), is in favor of the defendants and against them dismissing so much of that cause ofaction.
Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, thatbranch of the defendants' cross motion which was for summary judgment dismissing so much ofthe second cause of action as alleged a violation of Labor Law § 241 (6) is denied, somuch of the second cause of action as alleged a violation of Labor Law § 241 (6) isreinstated, and the order dated June 29, 2006, is modified accordingly.
At the time of his accident, the injured plaintiff (hereinafter the plaintiff) was employed by amasonry subcontractor in connection with the construction of a concrete block wall for a newsupermarket. The wall was being constructed by masons who worked while standing onscaffolding erected on the exterior side of the wall. The plaintiff testified that his regular dutiesincluded walking around to the interior side of the wall and scraping and removing the mortarwhich fell to the loading dock floor of the new supermarket as a result of the construction of theconcrete [*2]block wall some 12 to 20 feet above him. Theplaintiff wore a hard hat and was equipped with, inter alia, a chipping hammer, a scraper, ashovel, and a wheelbarrow in order to perform this work. On the day of his accident, the plaintiffallegedly was looking down and scraping the loading dock floor when he was struck in the headby a concrete block, or a portion thereof, which fell from the top of the wall where the masonswere working.
In seeking recovery pursuant to Labor Law § 241 (6), the plaintiffs relied upon 12NYCRR 23-1.7 (a) (1), a provision of the Industrial Code which requires the use of appropriatesafety devices to protect workers from overhead hazards. Under the circumstances, the SupremeCourt should not have granted that branch the defendants' motion which was for summaryjudgment dismissing so much of the second cause of action as alleged a violation of Labor Law§ 241 (6).
Contrary to the defendants' contention, the area where the plaintiff was required to work wasone which was "normally exposed to falling material or objects" (12 NYCRR 23-1.7 [a] [1]) andtherefore came within the ambit of the regulation. Accordingly, it is for a jury to decide whetherthe falling of a concrete block or a portion thereof was foreseeable and "whether the equipment,operation or conduct at the worksite was reasonable and adequate under the particularcircumstances" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 351 [1998]; see Zervos v City of New York, 8AD3d 477 [2004]; Belcastro v Hewlett-Woodmere Union Free School Dist. No. 14 ,286 AD2d 744 [2001]; Terry v Mutual Life Ins. Co. of N.Y., 265 AD2d 929 [1999];Murtha v Integral Constr. Corp., 253 AD2d 637 [1998]). Goldstein, J.P., Skelos, Dillonand Covello, JJ., concur.