Opinion
2019–09285 Index No. 504409/13
03-24-2021
Mieczyslaw ANDRES, appellant, v. NORTH 10 PROJECT, LLC, et al., respondents, et al., defendants (and a third-party action).
The Platta Law Firm, PLLC, New York, N.Y. (Laurence D. Rogers of counsel), for appellant. Ahmuty Demers & McManus, Albertson, N.Y. (Nicholas P. Calabria of counsel), for respondents.
The Platta Law Firm, PLLC, New York, N.Y. (Laurence D. Rogers of counsel), for appellant.
Ahmuty Demers & McManus, Albertson, N.Y. (Nicholas P. Calabria of counsel), for respondents.
REINALDO E. RIVERA, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated May 31, 2019. The order, insofar as appealed from, denied the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendants North 10 Project, LLC, and HSD Construction, LLC.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to recover damages for injuries he allegedly sustained when an electrical panel box that he was attempting to remove from a wall fell and struck him. The plaintiff appeals from so much of an order as denied his motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendants North 10 Project, LLC, and HSD Construction, LLC. We affirm.
"In order to prevail on summary judgment in a section 240(1) ‘falling object’ case, the injured worker must demonstrate the existence of a hazard contemplated under that statute ‘and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein’ " ( Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 N.Y.3d 658, 662, 985 N.Y.S.2d 416, 8 N.E.3d 791, quoting Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085, citing Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 ). "Essentially, the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured or required securing for the purposes of the undertaking" ( Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 N.Y.3d at 662–663, 985 N.Y.S.2d 416, 8 N.E.3d 791 [internal quotation marks omitted]).
Here, the plaintiff failed to establish that the electrical panel box was an object that required securing for the purposes of the undertaking (see Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 11, 935 N.Y.S.2d 551, 959 N.E.2d 488 ; Maldonado v. AMMM Props. Co., 107 A.D.3d 954, 955, 968 N.Y.S.2d 163 ). Accordingly, the Supreme Court properly denied the plaintiff's motion without regard to the sufficiency of the papers filed in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
RIVERA, J.P., CONNOLLY, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.