Opinion
02-06-2015
R.L. FLOYD, Claimant–Respondent, v. NEW YORK STATE THRUWAY AUTHORITY, Defendant–Appellant. (Claim No. 105256.).
Roach, Brown, McCarthy & Gruber, P.C., Buffalo (J. Mark Gruber of Counsel), for Defendant–Appellant. Dolce Panepinto, P.C., Buffalo (Jonathan M. Gorski of Counsel), for Claimant–Respondent.
Roach, Brown, McCarthy & Gruber, P.C., Buffalo (J. Mark Gruber of Counsel), for Defendant–Appellant.
Dolce Panepinto, P.C., Buffalo (Jonathan M. Gorski of Counsel), for Claimant–Respondent.
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.
Opinion
MEMORANDUM:Defendant appeals from an interlocutory judgment entered in favor of claimant after a trial on the issue of liability. Claimant, a painter working on a large-scale bridge painting project on the north Grand Island Bridge, was struck and injured by a falling rigging cable while preparing to return to his work area. Claimant subsequently commenced this action seeking damages for the violation of Labor Law § 240(1) as well as common-law negligence, but the latter claim was previously dismissed and is not at issue herein.
Contrary to defendant's contention, the Court of Claims properly denied its motion seeking summary judgment dismissing the Labor Law § 240(1) claim. Initially, we note that defendant may challenge the propriety of the order denying its motion for summary judgment on this appeal from the interlocutory judgment (see e.g. Fusco v. Hobbes, 16 A.D.3d 1031, 1032, 791 N.Y.S.2d 790 ; see generally Burke v. Crosson, 85 N.Y.2d 10, 15–16, 623 N.Y.S.2d 524, 647 N.E.2d 736 ). Likewise, although defendant previously had cross-moved for summary judgment and “successive summary judgment motions generally are disfavored” (Giardina v. Lippes, 77 A.D.3d 1290, 1291, 909 N.Y.S.2d 602, lv. denied 16 N.Y.3d 702, 2011 WL 135242 ), we are not precluded from addressing defendant's present motion, particularly in view of the fact that it was made after further discovery (see id. ).
We note with respect to the merits of defendant's motion that it is axiomatic that Labor Law § 240(1) “applies to both ‘falling worker’ and ‘falling object’ cases” (Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085 ), and that section 240(1) guards “workers against the ‘special hazards' that arise when the work site either is itself elevated or is positioned below the level where ‘materials or load [are] hoisted or secured’ ” (Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82, quoting Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932 ; see Micoli v. City of Lockport, 281 A.D.2d 881, 882, 721 N.Y.S.2d 891 ). To recover under section 240(1), a worker injured by a falling object must thus establish both (1) that the object was being hoisted or secured, or that it “ ‘required securing for the purposes of the undertaking,’ ” and (2) that the object fell because of the absence or inadequacy of a safety device to guard against a risk involving the application of the force of gravity over a physically significant elevation differential (Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 N.Y.3d 658, 663, 985 N.Y.S.2d 416, quoting Outar v. City of New York, 5 N.Y.3d 731, 732, 799 N.Y.S.2d 770, 832 N.E.2d 1186 ; see Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603–605, 895 N.Y.S.2d 279, 922 N.E.2d 865 ). Here, we conclude that defendant failed to meet its initial burden on the motion because the evidence it submitted in support thereof “failed to eliminate all triable issues of fact as to whether the object that struck [claimant] was an object that was ‘being hoisted or secured’ ..., or required securing for the purposes of the undertaking pursuant to Labor Law § 240(1) ” (Ginter v. Flushing Terrace, LLC, 121 A.D.3d 840, 843, 995 N.Y.S.2d 95 ; see Gonzalez v. TJM Constr. Corp., 87 A.D.3d 610, 611, 928 N.Y.S.2d 344 ).
We further conclude that the court properly granted claimant judgment on liability after conducting a trial. Viewing the evidence in the light most favorable to sustain the judgment following this nonjury trial (see Matter of City of Syracuse Indus. Dev. Agency [Alterm, Inc.], 20 A.D.3d 168, 170, 796 N.Y.S.2d 503 ), we conclude that there is a fair interpretation of the evidence supporting the court's determination that defendant violated Labor Law § 240(1) (see Sung Kyu–To v. Triangle Equities, LLC, 84 A.D.3d 1058, 1060, 923 N.Y.S.2d 628 ; Costa v. Piermont Plaza Realty, Inc., 10 A.D.3d 442, 444, 781 N.Y.S.2d 372 ; Bornschein v. Shuman, 7 A.D.3d 476, 478, 776 N.Y.S.2d 307 ). We have reviewed defendant's remaining contentions and conclude that they are without merit.It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.