| Greaves v Obayashi Corp. |
| 2008 NY Slip Op 07970 [55 AD3d 409] |
| October 21, 2008 |
| Appellate Division, First Department |
| Henderson Greaves, Appellant-Respondent, v ObayashiCorporation et al., Respondents-Appellants, et al., Defendant. (And a Third-PartyAction.) |
—[*1] Zaklukiewicz Puzo & Morrissey, LLP, Islip Terrace (Stephen Zaklukiewicz of counsel), forrespondents-appellants.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered December 19,2007, which, to the extent appealed from, denied the motions by the respective parties to thisappeal for summary judgment as to Labor Law § 240 (1) liability, and granted summaryjudgment to defendants on plaintiff's Labor Law §§ 200 and 241 (6) claims,unanimously modified, on the law, plaintiff granted summary judgment as to liability on hissection 240 (1) claim, and otherwise affirmed, without costs.
Plaintiff was standing on a scaffold, while working on a portion of a concrete wall, when thewall collapsed. Concrete blocks fell against the scaffold, knocking it over and causing plaintiff tofall to the ground, where blocks fell on top of him, causing injury. The portion of the wall whereplaintiff was working was neither braced nor secured.
The accident clearly fell within the scope of Labor Law § 240 (1), as the evidenceshows plaintiff was struck by falling objects that could have been, but were not, adequatelysecured by one of the devices enumerated in the statute (see Rocovich v Consolidated EdisonCo., 78 NY2d 509, 513-514 [1991]). His prima facie showing was not rebutted by defendantproperty owners and general contractor, thus entitling him to summary judgment against them(Williams v 520 Madison Partnership, 38 AD3d 464 [2007]; Boyle v 42nd St. Dev.Project, Inc., 38 AD3d 404 [2007]; LaFleur v Consolidated Edison Co. of N.Y., 221AD2d 250 [1995]).
Plaintiff's claim under section 241 (6) may not be premised upon alleged violations ofIndustrial Code (12 NYCRR) § 23-5.1 (c) and § 23-5.4 (a). The first of these Codesections is insufficiently specific to support a section 241 (6) claim (see Moutray vBaron, 244 AD2d 618, 619 [1997], lv denied 91 NY2d 808 [1998]), and the secondaddresses standards for a tubular welded frame scaffold, [*2]which plaintiff failed to demonstrate was in use at the time of hisinjury. None of plaintiff's remaining arguments regarding section 241 (6), nor his claim againstthe general contractor under Labor Law § 200, were raised in Supreme Court, and are thusunpreserved for appellate review (see Laboda v VJV Dev. Corp., 296 AD2d 441 [2002];Charles v City of New York, 227 AD2d 429, 430 [1996], lv denied 88 NY2d 815[1996]). Were we to review them at this time, we would find them unavailing.Concur—Tom, J.P., Gonzalez, Williams, Moskowitz and Freedman, JJ.