| Moncayo v Curtis Partition Corp. |
| 2013 NY Slip Op 03644 [106 AD3d 963] |
| May 22, 2013 |
| Appellate Division, Second Department |
| Galo Moncayo et al., Appellants, v Curtis PartitionCorporation et al., Respondents. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains, N.Y. (Mathew P.Ross, Debra A. Adler, and Patrick Lawless of counsel),for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Queens County(Pineda-Kirwan, J.), entered November 7, 2011, as denied that branch of their motionwhich was for summary judgment on the issue of liability on the cause of action alleginga violation of Labor Law § 240 (1), and granted those branches of the defendants'cross motion which were for summary judgment dismissing the causes of action alleginga violation of Labor Law § 240 (1) and a violation of Labor Law § 241 (6)insofar as predicated upon an alleged violation of 12 NYCRR 23-1.7 (a).
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff Galo Moncayo, a worker at a school construction site, allegedly wasinjured when, while standing on the ground outside the school, he was struck by a pieceof sheetrock that had fallen from the third floor of the school building. Another worker,Michael McNerny, had been working on the third floor, using a power saw to cut out apiece of sheetrock from the ceiling to facilitate the installation of a grill for the airconditioning system. McNerny was cutting the sheetrock into small pieces so he couldhandle each one himself without assistance, but in this instance, a small piece ofsheetrock slipped from his hand and bounced off a window sill before falling through anempty window frame and striking Galo on the ground. Galo, and his wife suingderivatively, alleging negligence and violation of Labor Law §§ 200, 240(1) and 241 (6). The plaintiffs then moved for summary judgment on the issue of liabilityon various causes of action, and the defendants cross-moved for summary judgmentdismissing the complaint. The Supreme Court, inter alia, denied that branch of theplaintiffs' motion which was for summary judgment on the issue of liability on the causeof action alleging a violation of Labor Law § 240 (1), and granted those branchesof the defendants' cross motion which were for summary judgment dismissing the causesof action alleging a violation of Labor Law § 240 (1) and a violation of Labor Law§ 241 (6) insofar as predicated upon an alleged violation of 12 NYCRR 23-1.7 (a).
The Supreme Court properly granted that branch of the defendants' cross motion[*2]which was for summary judgment dismissing thecause of action alleging a violation of Labor Law § 240 (1) and denied that branchof the plaintiffs' motion which was for summary judgment on that cause of action. As theCourt of Appeals has observed, not every injury caused by a falling object at aconstruction site is covered by the extraordinary protections of Labor Law § 240(1) (see Toefer v Long Is.R.R., 4 NY3d 399, 407 [2005]; Narducci v Manhasset Bay Assoc., 96NY2d 259, 267 [2001]). Rather, in a "falling object" case under Labor Law § 240(1) (cf. Runner v New YorkStock Exch., Inc., 13 NY3d 599, 604 [2009]), a plaintiff must show that, at thetime the object fell, it was "being hoisted or secured" (Narducci v Manhasset BayAssoc., 96 NY2d at 268) or "required securing for the purposes of the undertaking"(Outar v City of New York,5 NY3d 731, 732 [2005]; see Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757,758 [2008]; Andresky v WengerConstr. Co., Inc., 95 AD3d 1247, 1248-1249 [2012]). The plaintiff also mustshow that the object fell "because of the absence or inadequacy of a safety deviceof the kind enumerated in the statute" (Narducci v Manhasset Bay Assoc., 96NY2d at 268; see Mendez vJackson Dev. Group, Ltd., 99 AD3d 677, 678 [2012]; cf. Runner v NewYork Stock Exch., Inc., 13 NY3d at 603-604). The statute does not apply insituations in which a hoisting or securing device of the type enumerated in the statutewould not be necessary or expected (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d1, 8 [2011]; Narducci v Manhasset Bay Assoc., 96 NY2d at 268-269).
Here, the defendants established their prima facie entitlement to judgment as a matterof law dismissing the cause of action alleging a violation of Labor Law § 240 (1).McNerny testified that the sheetrock debris was placed in piles and then bagged. It wasnot discarded in pieces through the window openings. Because those small pieces ofsheetrock were not in the process of being hoisted or secured and did not require hoistingor securing, the "special protection" of Labor Law § 240 (1) was not implicated(Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d at 7; see Roberts vGeneral Elec. Co., 97 NY2d 737, 738 [2002]; Fried v Always Green, LLC, 77 AD3d 788, 789 [2010]; Galvan v Triborough Bridge &Tunnel Auth., 29 AD3d 517, 518 [2006]; cf. Outar v City of New York,5 NY3d at 732; Baker v Barron's Educ. Serv. Corp., 248 AD2d 655, 655-656[1998]). In opposition, the plaintiffs failed to raise a triable issue of fact.
The Supreme Court also properly granted that branch of the defendants' cross motionwhich was for summary judgment dismissing the cause of action alleging a violation ofLabor Law § 241 (6) insofar as that cause of action was predicated upon aviolation of 12 NYCRR 23-1.7 (a). That section requires suitable overhead protection inareas that are "normally exposed to falling material or objects" (12 NYCRR 23-1.7 [a][1]). The defendants established, prima facie, that 12 NYCRR 23-1.7 (a) (1) isinapplicable to the facts of this case because the area where the accident occurred wasnot normally exposed to falling material or objects. In opposition, the plaintiffs failed toraise a triable issue of fact (see Fried v Always Green, LLC, 77 AD3d at 790; Marin v AP-Amsterdam 1661 ParkLLC, 60 AD3d 824, 825 [2009]; cf. Roosa v Cornell Real Prop. Servicing, Inc., 38 AD3d1352, 1354 [2007]). Rivera, J.P., Balkin, Dickerson and Cohen, JJ., concur.