Opinion
January 15, 1998
Appeal from the Supreme Court, New York County (Sheila Abdus-Salaam, J.).
The descending material hoist that struck plaintiff as he was leaning out of a window to inspect leaks in a curtain wall was not, as a matter of law, a falling object that was improperly or inadequately secured ( see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501). Certainly there was no showing that plaintiff would not have sustained the injuries he did had a harness to prevent him from falling while leaning out of the window, or some other safety device specified in Labor Law § 240 (1) been provided. Accordingly, plaintiffs Labor Law § 240 (1) claim was properly dismissed ( cf., Moore v. Metro N. Commuter R. R., 233 A.D.2d 192; Merkle v. Weibrecht, 234 A.D.2d 696, lv denied 89 N.Y.2d 813). Nor did plaintiff show a viable claim under Labor Law § 241 (6) based on 12 NYCRR 23-6.3 (c) (3) (iii), requiring a partition between a "floor, roof, scaffold platform or other work surface or position" and a moving material hoist that comes within eight feet thereof, absent expert testimony or proof of industry standards that the curtain wall was a "platform" or "work surface" that should have been partitioned from the path of the hoist, or otherwise showing the applicability of this regulation. We have considered plaintiffs other claims and find them to be without merit.
Concur — Rosenberger, J.P., Williams, Andrias and Colabella, JJ.