| Andresky v Wenger Constr. Co., Inc. |
| 2012 NY Slip Op 04116 [95 AD3d 1247] |
| May 30, 2012 |
| Appellate Division, Second Department |
| Dino J. Andresky, Appellant, v Wenger Construction Co.,Inc., Respondent. |
—[*1] Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y.(Gregory A. Cascino of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Adams, J.), dated April 13, 2011, which denied his motionfor summary judgment on the issue of liability on the cause of action alleging violation of LaborLaw § 240 (1).
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion forsummary judgment on the issue of liability on the cause of action alleging violation of Labor Law§ 240 (1) is granted.
The plaintiff was shoveling concrete out of a container which had been placed on the planksof a scaffold. The container had been raised onto the scaffold by a coworker using a forklift. Theplaintiff observed that about one-third of the container hung over the edge of the planks of thescaffold, but the container did not exhibit any instability prior to the accident. After the plaintiffhad removed about 15 shovelfuls of concrete from the container in the presence of his foreman,the container tipped off the edge of the scaffold. The plaintiff, who was just removing his shovelfrom the container when it tipped over, was pulled down with it, and allegedly was injured. Thetipping container also pushed the unsecured planks off the metal piping of the scaffold so thatthey, too, fell to the ground.
The plaintiff commenced this action against the defendant alleging violations of, amongother statutes, Labor Law § 240 (1). The plaintiff moved for summary judgment on theissue of liability on that cause of action. The defendant opposed the motion, contending that therewas a triable issue of fact as to whether the defendant violated Labor Law § 240 (1) or,even if there was a violation, whether any such violation was a proximate cause of the accident.The Supreme Court denied the plaintiff's motion. The plaintiff appeals, and we reverse.
" '[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 Sung Kyu-To v Triangle Equities, LLC, 84 AD3d 1058,1059-1060 [2011]; Vargas v City ofNew York, 59 AD3d 261, 261 [2009]). Rather, liability may be imposed where an [*2]object or material that fell, causing injury, was "a load that requiredsecuring for the purposes of the undertaking at the time it fell" (Narducci v Manhasset BayAssoc., 96 NY2d 259, 268 [2001]; see Rocovich v Consolidated Edison Co., 78NY2d 509, 514 [1991]; Sung Kyu-To v Triangle Equities, LLC, 84 AD3d at 1059-1060;Portillo v Roby Anne Dev., LLC, 32AD3d 421, 421 [2006]). The Court of Appeals has recognized that "the applicability of thestatute in a falling object case . . . does not . . . depend upon whetherthe object has hit the worker" (Runner vNew York Stock Exch., Inc., 13 NY3d 599, 604 [2009]). "The relevant inquiry. . . is rather whether the harm flows directly from the application of the force ofgravity to the object" (id. at 604).
Here, the plaintiff established, prima facie, that the container of concrete constituted a loadthat required securing and that the defendant's failure to use an appropriate safety device tosecure it was a proximate cause of his injury (id.; see Outar v City of New York, 5 NY3d 731, 732 [2005]; DeHaen v Rockwood Sprinkler Co., 258 NY 350, 353-354 [1932]; Harrison v State of New York, 88AD3d 951, 951-952 [2011]; Castillo v 62-25 30th Ave. Realty, LLC, 47 AD3d 865, 866 [2008];Coque v Wildflower Estates Devs.,Inc., 31 AD3d 484, 487-488 [2006]; Orner v Port Auth. of N.Y. & N.J., 293AD2d 517, 517-518 [2002]; see also Gordon v Eastern Ry. Supply, 82 NY2d 555, 562[1993]; Quinteros v P. Deblasio,Inc., 82 AD3d 861, 862 [2011]; Mooney v PCM Dev. Co., 238 AD2d 487, 488[1997]).
In opposition, the defendant failed to raise a triable issue of fact as to whether the plaintiffwas provided with appropriate safety devices or whether the plaintiff was the sole proximatecause of his alleged injuries (seeGallagher v New York Post, 14 NY3d 83, 88-89 [2010]; McCallister v 200 Park, L.P., 92 AD3d927 [2012]; Quinteros v P. Deblasio, Inc., 82 AD3d at 862; Coque v WildflowerEstates Devs., Inc., 31 AD3d at 487-488; see also Rico-Castro v Do & Co N.Y. Catering, Inc., 60 AD3d 749,750 [2009]; Brandl v Ram Bldrs.,Inc., 7 AD3d 655, 655-656 [2004]). Accordingly, the Supreme Court should havegranted the plaintiff's motion for summary judgment on the issue of liability on the cause ofaction alleging violation of Labor Law § 240 (1). Angiolillo, J.P., Lott, Roman and Miller,JJ., concur.