| Favreau v Barnett & Barnett, LLC |
| 2008 NY Slip Op 00026 [47 AD3d 996] |
| January 3, 2008 |
| Appellate Division, Third Department |
| Kevin Favreau, Respondent, v Barnett and Barnett, LLC,Appellant. |
—[*1] Niles, Piller & Bracy, P.L.L.C., Plattsburgh (Matthew E. Douthat of counsel), forrespondent.
Carpinello, J. Appeal from an order of the Supreme Court (McGill, J.), entered January 3,2007 in Clinton County, which partially denied defendant's motion for summary judgmentdismissing the complaint.
This Labor Law action stems from an accident that plaintiff allegedly had in February 2001in the course of his employment with a general contractor on a commercial building project.According to plaintiff, on the date of the alleged accident, he was in the process of installing afirewall between defendant's office building and a newly-constructed addition. While walkingbackwards up the roof of the existing building carrying one end of a piece of sheetrock (acoworker was carrying the other end), he stepped on ice a few feet below the roof's peak and fellbackwards. He landed right where he fell without falling off the roof or sliding downward in anyway. Indeed, according to his testimony, "[his] head and part of [his] shoulders wereabove the peak" (emphasis added) after he fell. At issue on appeal is that part of an orderof Supreme Court denying defendant's motion for summary judgment dismissing the Labor Law§ 240 (1) and § 241 (6) causes of action.
While summary judgment was properly denied with respect to plaintiff's Labor Law §241 (6) cause of action, his accident was not covered under Labor Law § 240 (1) anddefendant was, therefore, entitled to summary judgment on this claim. It is well established thatan accident [*2]on an elevated work site does not alone establisha Labor Law § 240 (1) cause of action (see e.g. Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d280, 288-289 [2003]; Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d 974, 977[2003]). Rather, the statute " 'was designed to prevent those types of accidents in which [a]scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injuredworker from harm directly flowing from the application of the force of gravity to anobject or person' " (Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d at 978, quotingRoss v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).
Here, plaintiff's alleged injury did not flow from the application of the force of gravity. Hewas not injured as the result of falling off or sliding down the slope of the roof, or attempting toprevent himself from doing so (seeMilligan v Allied Bldrs., Inc., 34 AD3d 1268 [2006]; Grant v ReconstructionHome, 267 AD2d 555 [1999], appeal dismissed 95 NY2d 831 [2000], lvdismissed 95 NY2d 825 [2000]; Dorr v General Elec. Co., 235 AD2d 883 [1997];compare Striegel v Hillcrest Hgts. Dev. Corp., supra; D'Acunti v New York CitySchool Constr. Auth., 300 AD2d 107 [2002]). Rather, he was injured because he slipped andfell on ice, an accident that was in no way attributable to an elevation differential and could havehappened at ground level (see Grant v Reconstruction Home, supra; Dorr v GeneralElec. Co., supra; White v Sperry Supply & Warehouse, 225 AD2d 130 [1996]). Inother words, the hazard of slipping and falling on ice, even on top of a roof, does not entail a"risk[ ] due in some way to relative differences in elevation" (Rocovich v ConsolidatedEdison Co., 78 NY2d 509, 515 [1991]; see e.g. Cundy v New York State Elec. & GasCorp., 273 AD2d 743 [2000], lv denied 95 NY2d 766 [2000]; Francis vAluminum Co. of Am., 240 AD2d 985 [1997]; Dorr v General Elec. Co., supra).Under these circumstances, we find no basis for imposing liability pursuant to Labor Law§ 240 (1) and, therefore, this claim should have been dismissed (see Milligan v AlliedBldrs., Inc., supra; Cundy v New York State Elec. & Gas Corp., supra; Grant vReconstruction Home, supra; Francis v Aluminum Co. of Am., supra; White vSperry Supply & Warehouse, supra).
As a final matter, defendant's proof that it was "impossible" for plaintiff to have beenperforming the claimed task on the day in question was sufficiently refuted by plaintiff's evidencesuch that a jury must decide this issue.
Cardona, P.J., and Spain, J., concur.
Lahtinen, J. (concurring in part and dissenting in part). We respectfully dissent from thatportion of the majority's decision that dismisses the Labor Law § 240 (1) cause of action.Here, as in Striegel v Hillcrest Hgts. Dev. Corp. (100 NY2d 974 [2003]), plaintiff wasworking on a sloped roof when he slipped on ice on the roof, fell, and allegedly sustainedinjuries. Working on a sloped roof implicates a recognized gravity-related risk and there arespecific safety devices designed to address that risk (see id. at 978; see also Toefer v Long Is. R.R., 4NY3d 399, 406 [2005] [the risks intended to be protected by Labor Law § 240 (1)"can be inferred from the 'protective means' set forth in the statute"]). Both here and inStriegel no safety devices were provided. The plaintiff in Striegel—unlikehere—also slid part way down the roof, but his injuries had ostensibly occurred in theinitial fall and not the subsequent slide (Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2dat 976). We are not persuaded that the benign slide—the only apparent element missing inthis case that was present in Striegel—serves as an essential element withoutwhich the Labor Law § 240 (1) cause of action must fail. In Striegel, the Court ofAppeals concluded by stating: "In short, plaintiff was subject to an elevation-related risk whileworking on this particular roof, and he was not provided with any safety devices. In addition, thefailure to provide any safety devices was a proximate cause of plaintiff's injuries. He was withinthe protective ambit of Labor Law § 240 (1)" (id. at 978). The same can be said ofplaintiff in the current case. Accordingly, we would affirm Supreme Court's order.
Peters, J., concurs. Ordered that the order is modified, on the law, without costs, by reversingso much thereof as denied defendant's motion dismissing the Labor Law § 240 (1) cause ofaction; motion granted to that extent, summary judgment awarded to defendant and said cause ofaction dismissed; and, as so modified, affirmed.