| Garcia v Edgewater Dev. Co. |
| 2009 NY Slip Op 03477 [61 AD3d 924] |
| April 28, 2009 |
| Appellate Division, Second Department |
| Luis Garcia, Respondent, v Edgewater DevelopmentCompany, Appellant, et al., Defendant. (And a Third-Party Action.) |
—[*1] Rovegno & Taylor, P.C., Great Neck, N.Y. (Robert B. Taylor of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Edgewater DevelopmentCompany appeals, as limited by its brief, from so much of an order of the Supreme Court,Queens County (Grays, J.), entered September 14, 2007, as denied that branch of its motionwhich was for summary judgment dismissing the cause of action alleging a violation of LaborLaw § 240 (1) insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendant Edgewater Development Company which was forsummary judgment dismissing the plaintiff's cause of action alleging a violation of Labor Law§ 240 (1) insofar as asserted against it is granted.
The plaintiff allegedly was injured when a panel of drywall struck his back as he wasunloading it from a raised platform and pulling it through an open, second-story window. Thedefendant Edgewater Development Company established, prima facie, that the plaintiff was notsubject to an elevation-related hazard for which the protective devices enumerated in Labor Law§ 240 (1) are required. Although the platform was raised to reach the second-storywindow, the plaintiff was able to grasp the top and bottom corners of the panel while standing onthe floor, and thus the drywall was "not elevated above the work site, but rather was at the samelevel as the plaintiff" (Cruz v NeilHospitality, LLC, 50 AD3d 619, 620 [2008]; see Narducci v Manhasset BayAssoc., [*2]96 NY2d 259, 268-270 [2001]; Spiegler v Gerken Bldg. Corp., 57AD3d 514 [2008]; Natale v City ofNew York, 33 AD3d 772, 773-774 [2006]). In opposition, the plaintiff failed to raise atriable issue of fact as to whether the drywall fell from an elevated level, as required to bring theaccident within the coverage of Labor Law § 240 (1) (see Rodriguez v Margaret TietzCtr. for Nursing Care, 84 NY2d 841, 843 [1994]; Spiegler v Gerken Bldg. Corp., 57 AD3d 514 [2008]). Mastro, J.P.,Dillon, Covello and Dickerson, JJ., concur.