| Arrasti v HRH Constr. LLC |
| 2009 NY Slip Op 02459 [60 AD3d 582] |
| March 31, 2009 |
| Appellate Division, First Department |
| Ernst Arrasti, Respondent, v HRH Construction LLC etal., Appellants, et al., Defendant. |
—[*1] Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), for respondent.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered October 28,2008, which, to the extent appealed from, granted plaintiff's motion for partial summaryjudgment on his claim against defendants-appellants for violation of Labor Law § 240 (1),and denied said defendants' cross motion for summary judgment dismissing the complaint,unanimously modified, on the law, the cross motion granted only to the extent of dismissing theclaims based on Labor Law § 200 and common-law negligence, and those based onviolations of the Industrial Code other than having to do with a properly constructed ramp, andotherwise affirmed, without costs.
The ramp from which plaintiff fell while wheeling a loaded A-frame cart full of constructionmaterials was the sole means of access to the concrete floor, which was approximately 18 inchesbelow the hoist platform, and was thus a device to protect against an elevation-related risk withinthe meaning of Labor Law § 240 (1) (see e.g. McGarry v CVP 1 LLC, 55 AD3d 441 [2008]). There wasunrebutted evidence that defendants' failure to equip this ramp with handrails, curbs, cleats orother safety devices was the proximate cause of plaintiff's injuries (see Zimmer v ChemungCounty Performing Arts, 65 NY2d 513, 524 [1985]).
The evidence fails to raise a triable issue of fact that defendants supervised or controlledplaintiff's work at the construction site (see Lombardi v Stout, 80 NY2d 290, 295[1992]), caused or created the dangerous condition, or had actual or constructive notice of theunsafe condition of which plaintiff complains (cf. Murphy v Columbia Univ., 4 AD3d 200, 202 [2004]). Nor didthe condition of the ramp render plaintiff's work site an "unreasonably dangerous workenvironment" (O'Sullivan v IDI Constr.Co., Inc., 7 NY3d 805, 806 [2006]). Accordingly, the claims based on common-lawnegligence and violation of Labor Law § 200 should have been dismissed.
Plaintiff's expert did point out, however, in opposition to the cross motion for summaryjudgment, that Industrial Code (12 NYCRR) § 23-1.22 (b) (3) sets forth specific, positivestandards with regard to the construction of runways and ramps, rather than just a general duty of[*2]care (see O'Hare v City of New York, 280 AD2d 458[2001]). Plaintiff raised a triable issue of fact that defendants had violated this regulation bysupplying him with a ramp constructed of planking that was not "laid close, butt jointed [or]securely nailed," and which did not have the requisite "timber curbs at least two inches by eightinches full size, set on edge and placed parallel to, and secured to, the sides of" the ramp.(§ 23-1.22 [b] [3].)
Other sections of the Industrial Code, referred to in plaintiff's brief, have no basis in therecord, and accordingly are dismissed as predicates for the cause of action under Labor Law§ 241 (6). Concur—Gonzalez, P.J., Tom, Sweeny, Catterson and Renwick, JJ.[See 2008 NY Slip Op 32933(U).]