| Kempisty v 246 Spring St., LLC |
| 2012 NY Slip Op 00901 [92 AD3d 474] |
| February 9, 2012 |
| Appellate Division, First Department |
| Stephen Kempisty, Appellant, v 246 Spring Street, LLC, etal., Respondents. |
—[*1] Rafter and Associates PLLC, New York (Howard K. Fishman of counsel), forrespondents.
Order, Supreme Court, New York County (Martin Shulman, J.), entered November 22, 2010,which denied plaintiff's motion for summary judgment on his Labor Law § 241 (6) claimbased on violations of Industrial Code (12 NYCRR) § 23-8.2 (c) (3) and § 23-8.1 (f)(1) (iii), and deemed plaintiff's Labor Law § 241 (6) claim based on violations of othersections of the Industrial Code abandoned, and, upon a search of the record, granted summaryjudgment to defendants dismissing plaintiff's Labor Law § 240 (1) claim, unanimouslymodified, on the law, to the extent of reinstating the section 240 (1) claim, granting plaintiffsummary judgment on that claim, and reinstating the section 241 (6) claims deemed abandonedexcept for those premised on violations of Industrial Code §§ 23-3.3, 23-3.4 and23-6.1, and otherwise affirmed, without costs.
The motion court erred in finding that Labor Law § 240 (1) does not apply in this casebecause there was no appreciable height differential between plaintiff and the object beinghoisted, a four-ton steel block, that crushed plaintiff's foot. The elevation differential cannot beconsidered de minimis when the weight of the object being hoisted is capable of generating anextreme amount of force, even though it only traveled a short distance (see Runner v New York Stock Exch.,Inc., 13 NY3d 599 [2009]; seealso Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 [2011]).
Having concluded that section 240 (1) applies, the question is whether or not defendantsestablished the existence of an issue of fact sufficient to deny plaintiff summary judgment. Theyhave not. Plaintiff established that the accident was proximately caused by the application of theforce of gravity to the block. Plaintiff's expert asserts the block was not properly secured, throughthe use of tag lines or other safety devices, to prevent it from moving while being hoisted.
In opposition, defendants' expert merely attempts to shift proximate cause of the accident toplaintiff for walking in the path of the block, and he states, in conclusory fashion, that tag lineswere not required to be used during the load test. This does not sufficiently challenge theconclusions of plaintiff's expert that the accident was the direct result of the application of gravityto the block.
Regarding plaintiff's section 241 (6) claim, we agree that defendants raised an issue of factsufficient to defeat plaintiff's motion. The motion court providently exercised its discretion inconsidering the affidavit submitted from defendants' expert. Contrary to the motion court's [*2]determination, however, plaintiff did not abandon the section 241(6) claim insofar as premised on the remaining Industrial Code sections. This case differs fromMusillo v Marist Coll. (306 AD2d 782, 783 n [2003]), upon which the motion courtrelied, insofar as here it was plaintiff who moved for summary judgment. Where a defendant somoves, it is appropriate to find that a plaintiff who fails to respond to allegations that a certainsection is inapplicable or was not violated be deemed to abandon reliance on that particularIndustrial Code section. However, that is not the case where the plaintiff is the moving party.Nevertheless we find, upon a search of the record, that the section 241 (6) claims premised onsection 23-3.3, which pertains to demolition by hand, section 23-3.4, which pertains tomechanical methods of demolition, and section 23-6.1, which, by its terms, does not apply tocranes, are inapplicable under the circumstances presented, and should be dismissed.Concur—Tom, J.P., Sweeny, DeGrasse, Abdus-Salaam and Manzanet-Daniels, JJ.[Prior Case History: 2010 NY Slip Op 33254(U).]