| Gutman v City of New York |
| 2010 NY Slip Op 08529 [78 AD3d 886] |
| November 16, 2010 |
| Appellate Division, Second Department |
| Stefan Gutman, Appellant, v City of New York,Respondent. |
—[*1]
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Kerrigan, J.), entered July 2, 2009, which denied his motionfor summary judgment on the issue of liability with respect to so much of the complaint asalleged a violation of Labor Law § 240 (1) and granted that branch of the defendant's crossmotion which was for summary judgment dismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendant's cross motion which was for summary judgment dismissing so much ofthe complaint as alleged a violation of Labor Law § 240 (1), and substituting therefor aprovision denying that branch of the cross motion; as so modified, the order is affirmed, withoutcosts or disbursements.
The plaintiff, an employee of the New York City Transit Authority (hereinafter the TransitAuthority), allegedly was injured as he and his coworkers were using rail hooks to move a39-foot, 1,300-pound rail on top of another rail at the Steinway subway station in Queens. Uponthe callman's signal, the plaintiff's coworkers began lifting the rail off the ground, but theplaintiff's hooks were not in place and he was not ready to begin lifting. This allegedly caused theteam to lose control of the rail and resulted in the rail falling a distance of 12 to 16 inches ontothe plaintiff's right leg. The plaintiff commenced this action against the defendant City of NewYork, alleging violations of Labor Law § 240 (1) and § 241 (6).
The plaintiff moved for summary judgment on the issue of liability with respect to so muchof the complaint as alleged a violation of Labor Law § 240 (1), and the defendantcross-moved, inter alia, for summary judgment dismissing the complaint. The Supreme Courtdenied the plaintiff's motion and granted that branch of the defendant's cross motion which wasfor summary judgment dismissing the complaint.
Contrary to the Supreme Court's determination, the defendant failed to show that the heightdifferential was insufficient to implicate the special protections afforded by Labor Law §240 (1) (see Runner v New York StockExch., Inc., 13 NY3d 599 [2009]; Rocovich v Consolidated Edison Co., 78NY2d 509 [1991]; Outar v City of New York, 286 AD2d 671 [2001], affd 5NY3d 731 [2005]). While the plaintiff [*2]alleged that the rail atissue fell only 12 to 16 inches before landing on his leg, "[t]he elevation differential hereinvolved cannot be viewed as de minimis, particularly given the weight of the object and theamount of force it was capable of generating, even over the course of a relatively short descent"(Runner v New York Stock Exch., Inc., 13 NY3d at 605). Therefore, that branch of thedefendant's cross motion which was for summary judgment dismissing so much of the complaintas alleged a violation of Labor Law § 240 (1) should have been denied.
However, contrary to the plaintiff's contention, he was not entitled to summary judgment onthe issue of liability with respect to so much of the complaint as alleged a violation of Labor Law§ 240 (1). The plaintiff failed to establish his prima facie entitlement to judgment as amatter of law, since there remain issues of fact as to whether the rail "fell, while being hoisted. . . because of the absence or inadequacy of a safety device of the kindenumerated in the statute" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001];see Ienco v RFD Second Ave., LLC,41 AD3d 537, 539 [2007]; see generally Alvarez v Prospect Hosp., 68 NY2d 320[1986]).
The Supreme Court properly granted that branch of the defendant's cross motion which wasfor summary judgment dismissing so much of the complaint as alleged a violation of Labor Law§ 241 (6). With respect to this claim, the defendant established its entitlement to judgmentas a matter of law, and the plaintiff failed to raise a triable issue of fact in opposition thereto(see Vernieri v Empire Realty Co., 219 AD2d 593, 596 [1995]). Fisher, J.P., Santucci,Eng and Sgroi, JJ., concur.