| Wild v Marrano/Marc Equity Corp. |
| 2010 NY Slip Op 05910 [75 AD3d 1099] |
| July 2, 2010 |
| Appellate Division, Fourth Department |
| Scott Wild, Respondent, v Marrano/Marc Equity Corporation,Appellant. |
—[*1] The Ballow Law Firm, P.C., Williamsville (Jason A. Richman of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), enteredJanuary 26, 2009 in a personal injury action. The order granted the motion of plaintiff for partialsummary judgment.
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 when he fell into an excavation that was immediatelyadjacent to the area where he was applying siding to a house. When plaintiff stepped onto aplank that partially covered the excavation, his foot slipped, causing him to fall into theexcavation. Supreme Court properly granted plaintiff's motion seeking partial summaryjudgment on liability with respect to the Labor Law § 240 (1) claim. Contrary to thecontention of defendant, plaintiff's fall into an excavation from ground level is " 'the type ofelevation-related risk for which Labor Law § 240 (1) provides protection' " (Congi vNiagara Frontier Transp. Auth., 294 AD2d 830 [2002], quoting Covey v Iroquois GasTransmission Sys., 89 NY2d 952, 954 [1997]; see Jiminez v Nidus Corp., 288 AD2d123 [2001]; Bockmier v Niagara Recycling, 265 AD2d 897 [1999]). Contrary todefendant's further contention, the record establishes that the plank from which plaintiff fell wasnot being "used as a passageway or stairway" (Paul v Ryan Homes, 5 AD3d 58, 60 [2004]) but, rather, it "servedas the functional equivalent of a scaffold" (id. at 61).
We have considered defendant's remaining contentions and conclude that they are withoutmerit. Present—Martoche, J.P., Fahey, Carni, Sconiers and Green, JJ.