Summary
reinstating section 240 claim where plaintiff was struck in face by handle of scaffold hoist during scaffold's unchecked descent
Summary of this case from Diaz v. Globalfoundries, U.S., Inc.Opinion
No. 231 SSM 45.
Decided November 30, 2010.
APPEAL from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered June 18, 2010. The Appellate Division, with two Justices dissenting in part, affirmed so much of an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), as had granted those parts of the motions of defendants and third-party plaintiffs and third-party defendant for summary judgment dismissing the Labor Law § 240 (1) claim and the Labor Law § 241 (6) claim insofar as it is based on the alleged violation of 12 NYCRR 23-6.1 (j).
Plaintiff commenced a Labor Law and common-law negligence action seeking damages for injuries he sustained when he was struck in the face by the handle of a hand-operated hoisting mechanism while he was raising a scaffold. With respect to plaintiffs Labor Law § 240 (1) claim, the Appellate Division majority held that defendants established their entitlement to judgment as a matter of law, and plaintiff failed to raise a triable issue of fact. The majority concluded that the protective device, i.e., the scaffold, adequately shielded plaintiff and his coworkers on a platform from falling to the ground or sustaining other injuries as a result of the unchecked descent of the scaffold.
Strangio v Sevenson Envtl. Servs., Inc., 74 AD3d 1892, modified.
Lipsitz Green Scime Cambria LLP, Buffalo ( John A. Collins of counsel), for appellant.
Phillips Lytle LLP, Buffalo ( William D. Christ and Donna M. Lanham of counsel), for Sevenson Environmental Services, Inc. and another, respondents.
Sliwa Lane, Buffalo ( Michael T. Coutu of counsel), for Thomas Johnson, Inc., respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
The order of the Appellate Division should be modified, without costs, by denying the motions of defendants and the third-party defendant for summary judgment insofar as they seek dismissal of plaintiffs Labor Law § 240 (1) claim and, as so modified, affirmed.
Triable issues of fact exist as to whether the defendants provided proper protection under Labor Law § 240 (1). Plaintiffs remaining contentions lack merit.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order modified, etc.