| O'Donnell v Buffalo-DS Assoc., LLC |
| 2009 NY Slip Op 08376 [67 AD3d 1421] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| James O'Donnell, Appellant, v Buffalo-DS Associates, LLC, et al.,Respondents. |
—[*1] Bender, Crawford & Bender, LLP, Buffalo (Thomas W. Bender of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), enteredAugust 27, 2008 in a personal injury action. The order, insofar as appealed from, granted thoseparts of the cross motion of defendants for summary judgment dismissing the Labor Law §240 (1) claim and the Labor Law § 241 (6) claim insofar as it is based on an allegedviolation of 12 NYCRR 23-5.1 (d) (4).
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence actionseeking damages for injuries he sustained while he was attempting to raise a scaffold using ahand-operated hoisting mechanism. Plaintiff was turning the handle of the hoisting mechanismwhen the crank suddenly stopped, causing dislocation of his shoulder. As limited by his brief,plaintiff contends on appeal that Supreme Court erred in granting those parts of defendants' crossmotion seeking summary judgment dismissing the Labor Law § 240 (1) claim and theLabor Law § 241 (6) claim insofar as it is based on an alleged violation of 12 NYCRR23-5.1 (d) (4). We affirm.
With respect to the Labor Law § 240 (1) claim, defendants established theirentitlement to judgment as a matter of law, and plaintiff failed to raise a triable issue of fact(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Labor Law§ 240 (1) protects "workers against the 'special hazards' that arise when the work siteeither is itself elevated or is positioned below the level where 'materials or load [are] hoisted orsecured' " (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993], quotingRocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). The special hazardscontemplated by the statute "do not encompass any and all perils that may be connectedin some tangential way with the effects of gravity. Rather, [they] are limited to such specificgravity-related accidents as falling from a height or being struck by a falling object that wasimproperly [*2]hoisted or inadequately secured" (Ross,81 NY2d at 501). Here, plaintiff neither fell from a height nor was struck by an improperlyhoisted or inadequately secured object (see id.). Defendants submitted in support of theircross motion the deposition testimony of plaintiff establishing that his shoulder injury occurredwhen the handle of the hoisting mechanism ceased responding to his application of force. Themere fact that the force of gravity acted upon the hoisting mechanism is insufficient to establisha valid Labor Law § 240 (1) claim inasmuch as plaintiff's injury did not result from anelevation-related risk as contemplated by the statute (see Narducci v Manhasset BayAssoc., 96 NY2d 259, 269-270 [2001]; Melo v Consolidated Edison Co. of N.Y., 92NY2d 909, 911-912 [1998]; see generally Misseritti v Mark IV Constr. Co., 86 NY2d487, 491 [1995], rearg denied 87 NY2d 969 [1996]).
With respect to the Labor Law § 241 (6) claim insofar as it is based on an allegedviolation of 12 NYCRR 23-5.1 (d) (4), defendants met their initial burden on the cross motion byestablishing that they did not violate that regulation, pursuant to which "[n]o scaffold shall beloaded in excess of the maximum load for which it is intended" (see generally Piazza v Frank L. CiminelliConstr. Co., Inc., 2 AD3d 1345, 1349 [2003]; Bockmier v Niagara Recycling,265 AD2d 897 [1999]), and plaintiff failed to raise a triable issue of fact (see generallyZuckerman, 49 NY2d at 562). There is no evidence in the record establishing what materialswere located on the specific section of scaffolding at issue at the time of plaintiff's accident andthus no factual basis upon which the weight of those materials could be estimated. The opinionof plaintiff's expert that the scaffold was overloaded at the time of the accident is based uponpure speculation and thus is insufficient to raise a triable issue of fact (see Kretowski v BraenderCondominium, 57 AD3d 950, 952 [2008]; see generally Zuckerman, 49 NY2dat 562). Present—Scudder, P.J., Hurlbutt, Martoche, Centra and Peradotto, JJ.