| Cassidy v Highrise Hoisting & Scaffolding, Inc. |
| 2011 NY Slip Op 07936 [89 AD3d 510] |
| November 10, 2011 |
| Appellate Division, First Department |
| Robert Sands Cassidy, Respondent-Appellant, v HighriseHoisting & Scaffolding, Inc., Defendant, and Rockrose GC MWA L.L.C. et al.,Appellants-Respondents. |
—[*1] O'Dwyer & Bernstien, LLP, New York (Steven Aripotch of counsel), forrespondent-appellant.
Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered August 5, 2010,which granted plaintiff's motion for summary judgment on his claim pursuant to Labor Law§ 240 (1), and granted defendants-appellants' cross motion for summary judgment as toplaintiff's Labor Law § 241 (6) and § 200, and common-law causes of action,unanimously affirmed, without costs.
At the time of plaintiff's accident, Midtown West A.L.L.C. owned a building underconstruction, for which Rockrose GC MWA L.L.C. was the general contractor. DefendantHighrise Hoisting & Scaffolding, Inc. had installed a sidewalk bridge, hoistway and temporaryloading dock. The temporary loading dock constructed by Highrise was a wooden platformmeasuring 20 feet by 40 feet and was, depending upon the witness, approximately 48 to 60inches above the ground, about the height of a trailer truck. At the section of the loading dockwhere trucks load and unload, there was a removable horizontal pipe railing that wasapproximately eight feet long and two inches in diameter. The horizontal pipe railing wassecured to vertical posts with clamps at each end, and tightened into place with a nut and bolt. Inorder to allow for a delivery, the horizontal pipe railing would be unbolted from the clamps andremoved.
Plaintiff, a laborer employed by the nonparty concrete subcontractor, was waiting for thehoist to come to the loading dock level, when he leaned against the dock railing, which fell,causing him to fall as well. He suffered personal injuries to his neck and back.
The motion court properly granted plaintiff summary judgment on his Labor Law §240 (1) claims. Plaintiff was performing work protected by Labor Law § 240 (1), hisinjuries were gravity-related, and the elevated platform served as a device designed to protect aworker from gravity-related hazards (see Brennan v RCP Assoc., 257 AD2d 389, 391[1999], lv dismissed 93 NY2d 889 [1999]; see also Cordeiro v TS Midtown Holdings, LLC, 87 AD3d904[*2][2011]). Since the safety rail which was intended toprotect the plaintiff from falling off the elevated platform failed, the owner and the generalcontractor were in violation of section 240 (1).
However, defendants established that plaintiff could not recover under Labor Law §241 (6). Since the temporary loading dock was a platform under Industrial Code (12 NYCRR)§ 23-1.22 (c) (2), and not a scaffold, plaintiff failed to plead any applicable Industrial Codeviolations to support his claim (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494,501-504 [1993]).
Plaintiff's common-law and Labor Law § 200 claims were also properly dismissed.There is no evidence that defendants were on notice that the rail, which had been detached for adelivery made within one half hour prior to plaintiff's fall, was improperly reattached. Theaffidavit of plaintiff's site safety expert failed to create questions of fact warranting denial ofsummary judgment. An expert's opinion should be disregarded where no authority, treatise,standard, building code, article or other corroborating evidence is cited to support the assertionconcerning an alleged deviation from good and accepted industry custom and practice (Buchholz v Trump 767 Fifth Ave.,LLC, 5 NY3d 1, 8-9 [2005]). "Before a claimed industry standard is accepted by a courtas applicable to the facts of a case, the expert must do more than merely assert a personal beliefthat the claimed industry-wide standard existed at the time the design was put in place" (Hotaling v City of New York, 55AD3d 396, 398 [2008], affd 12 NY3d 862 [2009]).
We decline to reach defendants' argument concerning Labor Law § 240 (3), raised forthe first time in their appellate reply brief. Concur—Saxe, J.P., Sweeny, DeGrasse,Manzanet-Daniels and RomÁn, JJ.