Summary
affirming the lower court's decision which found the "work performed by plaintiff [to be] an integral and necessary part of the construction"
Summary of this case from Serwatka v. Freeman Decorating Corp.Opinion
Argued January 9, 1997
Decided February 6, 1997
APPEAL, by permission of the Appellate Division of the Supreme Court in the Third Judicial Department, from an order of that Court, entered February 29, 1996, which affirmed an order of the Supreme Court (Lawrence E. Kahn, J.), entered in Albany County, granting a motion by plaintiff for partial summary judgment on the issue of liability pursuant to Labor Law § 240, and denying a cross motion by defendants for summary judgment dismissing the complaint in its entirety. The following question was certified by the Appellate Division: "Did this court err, as a matter of law, in affirming the order of Supreme Court, which, inter alia, granted plaintiff's motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1)."
Carter, Conboy, Case, Blackmore, Napierski Maloney, P.C., Albany (William J. Greagan of counsel), for appellants.
Rowley, Forrest, O'Donnell, Beaumont Pelersi, P.C., Albany (David P. Miranda and Brian J. O'Donnell of counsel), for respondent.
Covey v Iroquois Gas Transmission Sys., 218 A.D.2d 197, affirmed.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the negative.
Plaintiff commenced this action pursuant to Labor Law § 240 (1) to recover damages for personal injuries he sustained when he fell approximately 20 feet from a backhoe into a trench during the course of his employment with a contractor engaged by defendants to construct a pipeline. At the time of the accident, plaintiff was attempting to replace hydraulic fluid in the backhoe, which was adjacent to the pipeline trench. The Appellate Division correctly determined that plaintiff was engaged in an activity protected under Labor Law § 240 (1), inasmuch as the work performed by plaintiff was part of the construction of the pipeline ( see, Lombardi v Stout, 80 N.Y.2d 290, 296). In addition, under the circumstances of this case, plaintiff's fall from the backhoe into the 15-foot deep excavation after attempting to steady himself by grabbing an improperly secured handrail was the type of elevation-related risk for which Labor Law § 240 (1) provides protection ( see, Gordon v Eastern Ry. Supply, 82 N.Y.2d 555, 560-562).
Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY concur in memorandum; Judge TITONE taking no part.
Order affirmed, etc.