| Rookwood v Hyde Park Owners Corp. |
| 2008 NY Slip Op 01736 [48 AD3d 779] |
| February 26, 2008 |
| Appellate Division, Second Department |
| Aubrey Rookwood, Respondent-Appellant, v Hyde ParkOwners Corp. et al., Appellants-Respondents. |
—[*1] Cerussi & Spring, P.C., White Plains, N.Y. (Jennifer R. Freedman and Kevin P. Westermanof counsel), for appellant-respondent New York Plumbing & Heating Corp. O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Michael T. Reagan ofcounsel), for respondent-appellant.
In an action to recover damages for personal injuries, the defendant Hyde Park Owners Corp.appeals from so much of an order of the Supreme Court, Queens County (Geller, J.), enteredOctober 25, 2006, as denied that branch of its motion which was for summary judgmentdismissing so much of the cause of action and the cross claims based on Labor Law § 241(6) as were predicated upon an alleged violation of 12 NYCRR 23-1.7 (b) (1) insofar as assertedagainst it; the defendant New York Plumbing & Heating Corp. separately appeals from so muchof the same order as denied that branch of its separate motion which was for summary judgmentdismissing so much of the cause of action and the cross claims based on Labor Law § 241(6) as were predicated upon an alleged violation of 12 NYCRR 23-1.7 (b) (1) insofar as assertedagainst it; and the plaintiff cross-appeals, as limited by his brief, from so much of the same orderas granted those branches of the defendants' separate motions which were for summary judgmentdismissing the cause of action based on Labor Law § 240 (1).
Ordered that the order is reversed insofar as appealed and cross-appealed from, on the law,without costs or disbursements, those branches of the defendants' separate motions which werefor summary judgment dismissing so much of the cause of action and the cross claims based on[*2]Labor Law § 241 (6) as were predicated upon analleged violation of 12 NYCRR 23-1.7 (b) (1) insofar as asserted against them are granted, andthose branches of the defendants' separate motions which were for summary judgment dismissingthe plaintiff's cause of action based on Labor Law § 240 (1) are denied.
The plaintiff was injured while installing an oil tank in the basement of premises owned bythe defendant Hyde Park Owners Corp. The accident occurred as the plaintiff, positioned on thelanding of a permanent staircase leading to the basement, was attaching a 5-foot by 10-foot metalplate, weighing 700 pounds, to a chainfall, in preparation for lowering the plate into thebasement. According to the plaintiff, on his own initiative, he had previously cut and removedthe iron handrail welded to the left side of the landing and stairway as, due to the size of theplate, there was no other way, without cutting up and later rewelding the plate, to lower it to thebasement where it was to be installed. The plate was resting on the landing and was held by threeof the plaintiff's coworkers, who were standing outside the basement door. It then slipped,knocking the plaintiff off the side of the staircase from which the railing had been removed. Theplaintiff fell eight to nine feet, landing on the basement floor. He commenced this action againstHyde Park Owners Corp. and the general contractor, New York Plumbing & Heating Corp.,alleging, inter alia, violations of Labor Law § 240 (1) and § 241 (6).
Contrary to the Supreme Court's conclusion, and the plaintiff's contention, the sole section ofthe Industrial Code relied upon by him to oppose the defendants' motions and to support hiscause of action under Labor Law § 241 (6), 12 NYCRR 23-1.7 (b) (1), is inapplicable tothe case at bar. Even though there was a height differential between the stairway landing and thefloor below, the stairway landing from which the plaintiff fell did not constitute a "hole orhazardous opening" (Garlow v Chappaqua Cent. School Dist., 38 AD3d 712, 714 [2007];see Godoy v Baisley Lbr. Corp., 40 AD3d 920 [2007]; Smith v McClier Corp., 38AD3d 322, 323 [2007]; Bennion v Goodyear Tire & Rubber Co., 229 AD2d 1003[1996]).
However, the Supreme Court erred in granting those branches of the defendants' separatemotions which were for summary judgment dismissing his cause of action based upon LaborLaw § 240 (1). Contrary to the defendants' contention, the record showed the existence of atriable issue of fact as to whether the plaintiff's actions were not the sole proximate cause of hisaccident because he had no choice as to the way in which he performed his work (seeRobinson v East Med. Ctr., LP, 6 NY3d 550, 553-555 [2006]; Narducci v Manhasset BayAssoc., 96 NY2d 259, 269 [2001]; Rodriguez v Margaret Tietz Ctr. for Nursing Care,84 NY2d 841, 843-844 [1994]; Gittleson v Cool Wind Ventilation Corp., 46 AD3d855 [2007]; Caruana v Lexington Vil. Condominiums at Bay Shore, 23 AD3d 509, 510[2005]; Parker v Ariel Assoc. Corp., 19 AD3d 670, 672 [2005]; Kanarvogel v TopsAppliance City, 271 AD2d 409, 410-411 [2000]; Barrett v Ellenville Natl. Bank, 255AD2d 473, 473-474 [1998]). We decline the plaintiff's invitation to search the record and awardhim summary judgment on his Labor Law § 240 (1) claim. Spolzino, J.P., Skelos, Florioand Dickerson, JJ., concur.