| Sung Kyu-To v Triangle Equities, LLC |
| 2011 NY Slip Op 04231 [84 AD3d 1058] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Sung Kyu-To, Appellant, v Triangle Equities, LLC, et al.,Respondents. (And a Third-Party Action.) |
—[*1] Andrea G. Sawyers, Melville, N.Y. (David R. Holland of counsel), for respondent TriangleEquities, LLC. Epstein Frankini & Grammatico, Woodbury, N.Y. (Mona C. Haas and Michael Callari III ofcounsel), for respondent Artimus Construction, Inc.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment ofthe Supreme Court, Queens County (Markey, J.), entered August 25, 2009, which, upon thegranting of the defendants' motion, in effect, pursuant to CPLR 4401 for judgment as a matter oflaw, made at the close of the evidence, is in favor of the defendants and against him dismissingthe complaint.
Ordered that the judgment is modified, on the law, by deleting the provision thereofdismissing the cause of action to recover damages for a violation of Labor Law § 240 (1);as so modified, the judgment is affirmed, with one bill of costs payable to the plaintiff, the causeof action to recover damages for a violation of Labor Law § 240 (1) is reinstated andsevered, that branch of the defendants' motion which was, in effect, pursuant to CPLR 4401 forjudgment as a matter of law dismissing that cause of action is denied, and the matter is remittedto the Supreme Court, Queens County, for a new trial on that cause of action in accordanceherewith.
The plaintiff allegedly was injured inside a five-story building where he was employed as ademolition laborer. At trial, the plaintiff testified that the demolition of the building had begun,and that portions of some of the floors and roof had been removed, leaving holes between thedifferent levels. The demolition involved the use of hammers to break up stucco, and othermaterial and beams and wires located in between floors had to be cut. Other workers wereengaged in repairing broken bricks and laying cement. Stacks of debris were collected in milkcrates and dumped to the street below. Larger pieces of wood were thrown out the holes wherethe windows had been located.
The plaintiff testified that, on the date of the accident, he was on the first floor gathering histools, when he heard a noise and then felt something drop onto his head. The first impact wasfollowed by a heavier impact which knocked the plaintiff unconscious. When the plaintiffregained consciousness, he [*2]was looking up through thebuilding at the sky. The plaintiff testified that debris "showered down from the building" and thatbroken bricks, dried cement, pieces of wood, and tangled-up electrical wires "dropped and buried[him]."
At the close of evidence, the defendants moved, in effect, pursuant to CPLR 4401 forjudgment as a matter of law. The Supreme Court granted the motion. A judgment was entered infavor of the defendants and against the plaintiff, dismissing the complaint.
"To be entitled to judgment as a matter of law pursuant to CPLR 4401, a defendant has theburden of showing that there is no rational process by which the jury could find in favor of theplaintiff and against the moving defendant" (Velez v Goldenberg, 29 AD3d 780, 781 [2006]; see Wehr v Long Is. R.R. Co., 38AD3d 880, 880-881 [2007]). "In considering the motion for judgment as a matter of law, thetrial court must afford the party opposing the motion every inference which may properly bedrawn from the facts presented, and the facts must be considered in a light most favorable to thenonmovant" (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; see Centennial Contrs. Enters. v East N.Y.Renovation Corp., 79 AD3d 690 [2010]).
" '[F]alling object' liability under Labor Law § 240 (1) is not limited to cases in whichthe falling object is in the process of being hoisted or secured" (Quattrocchi v F.J. Sciame Constr.Corp., 11 NY3d 757, 758-759 [2008]; see Vargas v City of New York, 59 AD3d 261, 261 [2009]).Rather, liability may be imposed where an object or material that fell, causing injury, was "a loadthat required securing for the purposes of the undertaking at the time it fell" (Narducci vManhasset Bay Assoc., 96 NY2d 259, 268 [2001]; see Rocovich v Consolidated EdisonCo., 78 NY2d 509, 514 [1991]; Portillo v Roby Anne Dev., LLC, 32 AD3d 421, 421 [2006]).
Viewing the evidence in a light most favorable to the plaintiff and affording him the benefitof every favorable inference, we conclude that the evidence adduced at trial provided a rationalbasis upon which the jury could have determined that the defendants were liable for damagesbased upon a violation of Labor Law § 240 (1). Notwithstanding evidence which wouldhave permitted the jury to conclude that the plaintiff did not know exactly what struck him, thejury could have reasonably concluded that the plaintiff was injured by material that was beingremoved from, or repaired at, the demolition site (see Mora v Boston Props., Inc., 79 AD3d 1109, 1109-1110 [2010];Vargas v City of New York, 59 AD3d at 261; Portillo v Roby Anne Dev., LLC,32 AD3d at 421-422; cf. Narducci v Manhasset Bay Assoc., 96 NY2d at 268), and giventhe nature and purpose of the work that was being performed at the time of his injury, suchmaterial presented a significant risk of injury such that the defendants were obligated underLabor Law § 240 (1) to use appropriate safety devices to secure the material that fell (see Quinteros v P. Deblasio, Inc., 82AD3d 861 [2011]; Costa vPiermont Plaza Realty, Inc., 10 AD3d 442, 444 [2004]; Bornschein v Shuman, 7 AD3d476, 478 [2004]; see also Orner v Port Auth. of N.Y. & N.J., 293 AD2d 517, 517[2002]; Baker v Barron's Educ. Serv. Corp., 248 AD2d 655, 656 [1998]; cf. Roberts vGeneral Elec. Co., 97 NY2d 737, 738 [2002]). Accordingly, the Supreme Court improperlygranted that branch of the defendants' motion which was for judgment as a matter of lawdismissing the cause of action to recover damages for a violation of Labor Law § 240 (1).
However, the Supreme Court properly granted that branch of the defendants' motion whichwas for judgment as a matter of law dismissing the cause of action to recover damages basedupon a violation of Labor Law § 241 (6). In this regard, the plaintiff failed to allege, letalone establish, the violation of an Industrial Code provision which sets forth specific applicablesafety standards (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 349 [1998]; Shaw v RPA Assoc., LLC, 75 AD3d634, 636-637 [2010]; Cambizaca vNew York City Tr. Auth., 57 AD3d 701, 702 [2008]; cf. Galarraga v City of New York, 54AD3d 308, 310 [2008]). Accordingly, the matter must be remitted to the Supreme Court,Queens County, for a new trial limited to the cause of action to recover damages based upon aviolation of Labor Law § 240 (1). Angiolillo, J.P., Florio, Belen and Miller, JJ., concur.