Summary
In Berg, the plaintiff's claim was properly dismissed because there was evidence that the plaintiff's accident was caused by rolling trusses that were improperly moved by a forklift, not by the lack of a safety device, and the plaintiff failed to adduce proof sufficient to create a question of fact on this issue (10 N.Y.3d at 904, 861 N.Y.S.2d 607, 891 N.E.2d 723).
Summary of this case from Myiow v. City of N.Y.Opinion
No. 104.
Argued May 1, 2008.
decided June 12, 2008.
APPEAL from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered May 17, 2007. The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, Schenectady County (Felix J. Catena, J.), which, insofar as appealed from, had denied a cross motion by plaintiff for partial summary judgment on the issue of liability and granted motions by defendants for summary judgment dismissing the complaint.
Berg v Albany Ladder Co., Inc., 40 AD3d 1282, affirmed.
Capasso Massaroni LLP, Schenectady ( John R. Seebold of counsel), for appellant.
Ahmuty, Demers McManus, Albertson ( Brendan T. Fitzpatrick of counsel), for respondents and third-party plaintiff-respondent.
Hanlon, Veloce Wilkinson, Albany ( Christine D'Addio Hanlon of counsel), for Stone Bridge Iron Steel, third-party defendant-respondent.
Law Offices of Epstein Donnelly, Latham ( Jeffrey T. Culkin of counsel), for Fast Trek Steel, Inc., third-party defendant-respondent.
Before: Chief Judge KAYE and Judges GRAFFEO, READ, SMITH, PIGOTT and JONES concur; Judge CIPARICK taking no part.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed, with costs.
In October 2000, plaintiff Frederick Berg was working on a flatbed truck unloading steel trusses with the assistance of a forklift operated by a coworker. While plaintiff was standing atop several bundles of trusses about 10 feet off the ground, another bundle became unstable and began to roll over on top of him. Rather than being crushed by the trusses, plaintiff climbed into the bundle as it toppled to the ground and he suffered physical injuries. Among other causes of action, plaintiff alleged a "falling worker" claim under Labor Law § 240 (1). Supreme Court granted defendants' motion for summary judgment dismissing the complaint and the Appellate Division affirmed.
As we have made clear, the protections of Labor Law § 240 (1) do not apply to every worker who falls and is injured at a construction site ( see e.g. Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267). Among other prerequisites, a worker must demonstrate the existence of an elevation-related hazard contemplated by the statute and a failure to provide the worker with an adequate safety device ( see Broggy v Rockefeller Group, Inc., 8 NY3d 675, 681; Narducci, 96 NY2d at 267; Rocovich v Consolidated Edison Co., 78 NY2d 509, 514). Although plaintiff asserts that the height at which he worked created an elevation-related risk ( cf. Toefer v Long Is. R.R., 4 NY3d 399, 408-409), he failed to adduce proof sufficient to create a question of fact regarding whether his fall resulted from the lack of a safety device. Consequently, the courts below correctly granted summary judgment dismissing the Labor Law § 240 (1) cause of action.
Order affirmed, with costs, in a memorandum.