Opinion
February 24, 1998
Appeal from the Supreme Court, New York County (Norman Ryp, J.).
At issue on this appeal is whether defendants are liable under Labor Law § 240 (1) for an injury suffered by plaintiff while working as a construction laborer.
The evidence set forth by the parties on their motion and cross-motion for summary judgment demonstrated that, on October 8, 1991, plaintiff Peter Campanella was employed by third-party defendant Lehrer McGovern Bovis, Inc., and was engaged in construction work on a building owned by defendant St. Luke's.
Plaintiff, who was working under the supervision of another Lehrer McGovern employee, was instructed to help load timbers into a dumpster owned by Avalanche. He proceeded to stand in the dumpster, on top of some debris, and was handed the timbers by two co-workers from the first floor roof, 8 to 12 feet above him. Plaintiff had successfully guided a number of timbers so that they fell into the dumpster when he was handed a particularly heavy timber, which he was unable to control. In order to keep it from crushing him, he twisted away and fell, thereby injuring his back. After the accident, an employee of Avalanche, a subcontractor on the site, came over to replace him in the task. This was the first time plaintiff had met any Avalanche employee.
We find that this factual showing entitles plaintiff to summary judgment on the issue of St. Luke's liability under Labor Law § 240 (1). The lowering of the timbers from an 8 to 12 foot elevation without the aid of any safety device was clearly a hazard implicating the statute, which provides special protections for workers involved in jobs that "entail a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured" (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514; see also, Skow v. Jones, Lang Wooton Corp., 240 A.D.2d 194; Sherman v. Babylon Recycling Ctr., 218 A.D.2d 631, lv dismissed 87 N.Y.2d 895). Defendant St. Luke's, as owner, was therefore liable irrespective of the degree of supervision it exercised over the work (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494).
However, we find that the cause of action was properly dismissed against Avalanche on the alternative ground that plaintiffs failed to raise an issue of fact that Avalanche had any role in supervising the task. While a party other than the owner or general contractor may be held liable under section 240 (1) as the owner's agent by virtue of having authority to supervise and control the work being performed at the time of injury (see, Russin v. Picciano Son, 54 N.Y.2d 311, 317-318), here, Avalanche showed, based upon plaintiffs testimony that he was supervised by a Lehrer McGovern employee, that it did not supervise plaintiff's task (see, e.g., Uht v. Hazan Sawyer Envtl. Engrs. Scientists, 243 A.D.2d 290). Plaintiff failed to counter this showing with any evidence of Avalanche's supervision, merely showing that an Avalanche employee may have performed his task after the incident.
Concur — Sullivan, J. P., Milonas, Ellerin, Nardelli and Mazzarelli, JJ.