Opinion
02-10-2017
Joseph T. GRABAR and Carol A. Grabar, Plaintiffs–Respondents, v. NICHOLS, LONG & MOORE CONSTRUCTION CORP., Defendant–Appellant.
Barclay Damon LLP, Buffalo (Tyson R. Prince of Counsel), for Defendant–Appellant. Maxwell Murphy, LLC, Buffalo (Alan D. Voos of Counsel), for Plaintiffs–Respondents.
Barclay Damon LLP, Buffalo (Tyson R. Prince of Counsel), for Defendant–Appellant.
Maxwell Murphy, LLC, Buffalo (Alan D. Voos of Counsel), for Plaintiffs–Respondents.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM:Plaintiffs commenced this Labor Law and common-law negligence action seeking damages for injuries sustained by Joseph T. Grabar (plaintiff) when the trailer on which plaintiff was standing tipped, and he fell. Plaintiff was on the bed of the trailer in order to place fuel in a welder that was located on the trailer, and it is undisputed that the trailer bed was approximately 20 inches from the ground. We agree with defendant that Supreme Court erred in denying that part of its cross motion for summary judgment dismissing the complaint with respect to the section 240(1) claim, and we therefore reverse the order insofar as appealed from, grant the cross motion in its entirety, and dismiss the complaint.
We conclude that the trailer "did not present the kind of elevation-related risk that the statute contemplates" (Toefer v. Long Is. R.R., 4 N.Y.3d 399, 408, 795 N.Y.S.2d 511, 828 N.E.2d 614 ; see Amantia v. Barden & Robeson Corp., 38 A.D.3d 1167, 1168, 833 N.Y.S.2d 784 ). Indeed, the injured plaintiff in Tillman v. Triou's Custom Homes , 253 A.D.2d 254, 257, 687 N.Y.S.2d 506 fell from the truck bed on which he was working after it tipped due to flat tires, and we held that the Labor Law § 240(1) cause of action should have been dismissed.
We reject plaintiffs' contention that our determination in Doyle v. Niagara Mohawk Power Corp., 2 A.D.3d 1404, 768 N.Y.S.2d 865 compels a different result. We take judicial notice of our records in that appeal and note that we agreed with Supreme Court that the plaintiff should have been provided with a ladder in order to tighten a coupling located above a tar kettle, rather than standing on the top of the tar kettle onto which tar had leaked, causing him to slip and fall. Here, however, plaintiff was not engaged in a task that entailed "a significant risk inherent in [it] because of the relative elevation at which the task must be performed" (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932 ). Labor Law § 240(1) is applicable when "[t]he contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured" (Rocovich, 78 N.Y.2d at 514, 577 N.Y.S.2d 219, 583 N.E.2d 932 ; cf. Hyatt v. Young, 117 A.D.3d 1420, 1420, 984 N.Y.S.2d 533 ; Potter v. Jay E. Potter Lbr. Co., Inc., 71 A.D.3d 1565, 1566–1567, 900 N.Y.S.2d 207 ), neither of which is present here.
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, defendant's cross motion is granted in its entirety, and the complaint is dismissed.