Summary
In Bond v. York Hunter Constr. (95 NY2d 883) we denied recovery to a worker who, getting down from the cab of a construction vehicle, placed his foot on the vehicle's track to use it as a step, slipped and fell three feet to the ground.
Summary of this case from Toefer v. Long Is. R.ROpinion
Decided September 19, 2000.
Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered March 16, 2000, which, with two Justices dissenting, affirmed an order of the Supreme Court (Bertram Katz, J.), entered in Bronx County, granting motions by the construction manager and plaintiff's employer for summary judgment dismissing the complaint and third-party complaint, and denying plaintiff's cross motion for partial summary judgment as to liability on his cause of action under Labor Law § 240 (1).
Submitted by Bruce J. Gitlin, for appellant.
Submitted by Joseph J. Andriola, for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed, with costs. After completing his work for the day, plaintiff, a demolition worker employed by third-party defendant, began to alight from his demolition vehicle. The vehicle was equipped with a track system on each side to maneuver it through the construction site. The vehicle was not equipped with a step to assist operators in their entry or exit from the vehicle. Plaintiff stepped down from the cab of the vehicle and placed his foot onto the vehicle's track, using it like a step. Plaintiff claimed his foot slipped off the track because grease had previously leaked onto the track's surface. Plaintiff fell approximately three feet to the ground and suffered injury.
As a matter of law, the risk of alighting from the construction vehicle was not an elevation-related risk which calls for any of the protective devices of the types listed in Labor Law § 240(1) (see,Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 514-515). Moreover, plaintiff failed to adduce any evidence to support his section 200 claim that defendant had created, or had prior notice of, the greasy condition of the track (see, Lombardi v Stout, 80 N.Y.2d 290, 294-295). Finally, plaintiff's arguments under the Industrial Code regulations are either unpreserved or without merit.
On review of submissions pursuant to section 500.4 of the Rules, order affirmed, with costs, in a memorandum. Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley and Rosenblatt concur.