Summary
In Tylutki and other decisions, the Second Department has explicitly or implicitly rejected the notion that falling masonry or other structural components unsecured as part of a demolition or other work covered by Labor Law § 240(1) is an "inherent" or "ordinary" risk of the work not contemplated by the statute.
Summary of this case from Castro v. JK USA Group, Inc.Opinion
2003-08064.
Decided May 17, 2004.
In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (F. Rivera, J.), dated July 17, 2003, which granted the plaintiffs' motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240(1) and denied their cross motion for summary judgment dismissing the complaint.
Miller Associates, P.C., New York, N.Y. (William R. Pirk, Jr., and Scott Miller of counsel), for appellants.
Drabkin and Margulies (Alexander J. Wulwick, New York, N.Y., of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
On January 17, 2001, the plaintiff Josef Tylutki (hereinafter the plaintiff), was struck and injured by a falling piece of sprinkler pipe while engaged in the demolition of a building. The accident occurred when the plaintiff's co-worker hit a section of pipe with a hammer causing the pipe to fall striking the plaintiff in the face. It is undisputed that no protective device designed to catch the falling pieces of pipe was utilized in connection with the work.
Contrary to the defendants' contention, the plaintiff was exposed to a gravity-related hazard within the meaning of Labor Law § 240(1) ( see Salinas v. Barney Skanska Constr. Co., 2 A.D.3d 619; Heidelmark v. State of New York, 1 A.D.3d 748; Thomas v. 2 Overhill Rd. Assoc., 1 A.D.3d 174; Van Eken v. Consolidated Edison Co of New York, 294 A.D.2d 352, 353). Furthermore, the plaintiffs met their prima facie burden of entitlement to judgment as a matter of law by demonstrating that the absence of a safety device of the kind enumerated in the statute proximately caused the plaintiff's injury ( see Salinas v. Barney Skanska Constr. Co., supra; Orner v. Port Auth. of N.Y. N.J., 293 A.D.2d 517) . In opposition, the defendants failed to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320).
Accordingly, the Supreme Court properly granted the plaintiffs' motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240(1) and denied the defendants' cross motion for summary judgment dismissing the complaint.
SANTUCCI, J.P., SCHMIDT, TOWNES and MASTRO, JJ., concur.