| Marin v AP-Amsterdam 1661 Park LLC |
| 2009 NY Slip Op 01959 [60 AD3d 824] |
| March 17, 2009 |
| Appellate Division, Second Department |
| Marcelino Marin, Appellant, v AP-Amsterdam 1661 ParkLLC et al., Respondents. |
—[*1] Marshall Conway Wright & Bradley P.C. (Max W. Gershweir, New York, N.Y. [Jennifer B.Ettenger and Steven Sonkin], of counsel), for respondents.
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, Queens County (Elliot, J.), entered March28, 2008, as granted those branches of the defendants' motion which were for summary judgmentdismissing the causes of action alleging violations of Labor Law § 240 (1) and §241 (6) and denied his cross motion for summary judgment on the issue of liability on the LaborLaw § 240 (1) cause of action.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendants' motion which was for summary judgment dismissing so much of thecause of action alleging a violation of Labor Law § 241 (6) as is predicated on a violationof 12 NYCRR 23-1.8 (c) (1) and substituting therefor a provision denying that branch of themotion; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
The plaintiff allegedly was injured while installing a vertical line of drainpipe on the exteriorof a six-story apartment building. The plaintiff was working approximately eight feet aboveground level, using metal brackets to affix the pipe to the building's brick exterior, when onesuch bracket, which had been attached near the top of the building, became dislodged and fell,striking the plaintiff's head. There was no overhead protection, and the plaintiff had not beenprovided, and was not wearing, a safety hat. Prior to the accident, the plaintiff had informed hissupervisor that the brackets were the wrong size, and earlier that day, two other brackets hadfallen from the building.[*2]
The plaintiff commenced this action against the ownersand manager of the building, alleging, inter alia, violations of Labor Law § 240 (1) and§ 241 (6). After discovery, the defendants moved for summary judgment dismissing thecomplaint, and the plaintiff cross-moved for summary judgment on the issue of liability on theLabor Law § 240 (1) cause of action. The Supreme Court granted the defendants' motionand denied the plaintiff's cross motion.
The Supreme Court properly granted that branch of the defendants' motion which was forsummary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1), and properly denied the plaintiff's cross motion for summary judgment on the issue ofliability under that statute. Section 240 (1) requires property owners to provide workers with"scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, andother devices which shall be so constructed, placed and operated as to give proper protection" tothe workers (Labor Law § 240 [1]). To establish liability under section 240 (1) based on afalling object, a plaintiff must show that, at the time the object fell, it was "being hoisted orsecured" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]), or "requiredsecuring for the purposes of the undertaking" (Outar v City of New York, 5 NY3d 731, 732 [2005]). The statutegenerally does not apply to objects that are part of a building's permanent structure (seeNarducci v Manhasset Bay Assoc., 96 NY2d at 268; Buckley v Columbia Grammar & Preparatory, 44 AD3d 263, 270[2007]; Xidias v Morris Park Contr.Corp., 35 AD3d 850 [2006]). Moreover, the plaintiff must show that the object fell"because of the absence or inadequacy of a safety device of the kind enumerated in thestatute" (Narducci v Manhasset Bay Assoc., 96 NY2d at 268).
In this case, the metal bracket that struck the plaintiff had been installed prior to theplaintiff's accident (albeit as part of the work the plaintiff was performing), and thus became partof the building's permanent structure. Furthermore, the accident did not occur undercircumstances in which "a hoisting or securing device of the kind enumerated in the statutewould have been necessary or even expected" (Narducci v Manhasset Bay Assoc., 96NY2d at 268). Accordingly, the defendants made a prima facie showing that Labor Law §240 (1) was not applicable under the circumstances of this case, and, in opposition, the plaintifffailed to raise a triable issue of fact.
The Supreme Court also properly granted that branch of the defendants' motion which wasfor summary judgment dismissing so much of the Labor Law § 241 (6) cause of action aswas predicated on a violation of section 23-1.7 (a) (1) of the Industrial Code, which requiressuitable overhead protection in places that are "normally exposed to falling material or objects"(12 NYCRR 23-1.7 [a] [1]). The fact that two brackets had fallen from the building prior to theplaintiff's accident was not a sufficient basis for a finding that the plaintiff's work site was"normally exposed" to falling brackets. Thus, the defendants demonstrated their prima facieentitlement to judgment as a matter of law with respect to section 23-1.7 (a) (1), and, inopposition, the plaintiff failed to raise a triable issue of fact (see Mercado v TPT Brooklyn Assoc., LLC, 38 AD3d 732 [2007];Portillo v Roby Anne Dev., LLC,32 AD3d 421 [2006]).
The Supreme Court, however, should have denied that branch of the defendants' motionwhich was for summary judgment dismissing so much of the Labor Law § 241 (6) causeof action as was predicated on a violation of section 23-1.8 (c) (1) of the Industrial Code. Thatprovision, unlike section 23-1.7 (a) (1), does not require that the site of the accident be "normallyexposed" to falling material, but instead provides that "[e]very person required to work or passwithin any area where there is a danger of being struck by falling objects or materials. . . shall be provided with and shall be required to wear an approved safety hat" (12NYCRR 23-1.8 [c] [1] [emphasis added]). By presenting evidence that two brackets similar tothe one that struck him had already fallen from the [*3]buildingon the day of the accident, the plaintiff raised a triable issue of fact as to whether there was a"danger" that he would be struck by a falling bracket, which would trigger the protection ofsection 23-1.8 (c) (1) of the Industrial Code (see Prince v Merit Oil of N.Y., 238 AD2d561 [1997]). Prudenti, P.J., Ritter, Santucci and Chambers, JJ., concur.