Summary
finding that Labor Law Section 240 did not apply where injuries sustained by a worker while installing pipe racks in ceiling when he attempted to climb off a ladder and fell due to protruding pipes from a nearby unfinished wall because injuries were a result of the usual and ordinary dangers at a construction site not elevation-related hazard
Summary of this case from Coombes v. Shawmut Design & Constr.Opinion
Decided October 28, 2008.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, entered February 5, 2008. The Appellate Division modified, on the law, an order of the Supreme Court, New York County (Walter B. Tolub, J.; op 2007 NY Slip Op 34351[U]), which had granted defendants' motion for summary judgment dismissing the cause of action under Labor Law § 241 (6) and denied plaintiffs' cross motion for summary judgment on their Labor Law § 240 (1) claim. The modification consisted of granting plaintiffs' cross motion for summary judgment on their Labor Law § 240 (1) claim. The Appellate Division affirmed the order as modified. The following question was certified by the Appellate Division: "Was the order of this Court, which modified the order of the Supreme Court, properly made?"
Plaintiff laborer was injured when he fell while descending a ladder after installing ceiling racks. The ladder was placed in a position where two unconnected pipes protruded from a wall near the lower two rungs.
Cohen v Memorial Sloan-Kettering Cancer Ctr., 50 AD3d 227, reversed.
Mauro Goldberg Lilling, Great Neck ( Matthew W. Naparty of counsel), and Kopff, Nardelli Dopf LLP, New York City ( Martin B. Adams of counsel), for appellants.
David P. Kownacki, New York City, for respondents.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
The order of the Appellate Division should be reversed, with costs, plaintiffs' cross motion for summary judgment on their Labor Law § 240 (1) claim denied, defendants' motion for summary judgment dismissing the Labor Law § 240 (1) claim granted, and the certified question answered in the negative.
No Labor Law § 240 (1) liability exists where an injury results from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first place ( see Nieves v Five Boro A.C. Refrig. Corp., 93 NY2d 914; Melber v 6333 Main St., 91 NY2d 759, 763-764). Here, the presence of two unconnected pipes protruding from a wall was not "the risk which brought about the need for the [ladder] in the first instance" ( Nieves, 93 NY2d at 916 [citations omitted]), but was one of "the usual and ordinary dangers at a construction site" ( id.) to which the "extraordinary protections of Labor Law § 240 (1) [do not] extend" ( id. at 915).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, etc.