Opinion
May 3, 2002.
Appeal was taken from order of the Supreme Court, Niagara County, Fricano, J., granting construction worker's motion for partial summary judgment in his scaffold law action. The Supreme Court, Appellate Division, held that worker's fall while attempting to descend into an excavated trench to tie together rebar rod was elevation-related risk to which scaffold law applied. Affirmed.
Gibson, McAskill Crosby, LLP, Buffalo (Timothy J. Graber of counsel), for defendant-appellant.
Lewis Lewis, P.C., Buffalo (Michael J. Skoney of counsel), for plaintiffs-respondents.
Before: WISNER, J.P., SCUDDER, KEHOE, BURNS, and GORSKI, JJ.
MEMORANDUM
Supreme Court properly granted plaintiffs' motion for partial summary judgment on liability under Labor Law § 2470(1) and denied defendant's cross motion to dismiss that cause of action. David Congi (plaintiff) was injured when he fell while attempting to descend into an excavated trench to tie together rebar rod, which held in place PVC pipes at a construction project at the Niagara Falls International Airport. Contrary to defendant's contentions, plaintiff's fall into the excavated trench is "the type of elevation-related risk for which Labor Law § 240(1) provides protection" (Covey v. Iroquois Gas Transmission Sys., 89 N.Y.2d 952, 954, 655 N.Y.S.2d 854, 678 N.E.2d 466; see Bockmier v. Niagara Recycling, 265 A.D.2d 897, 696 N.Y.S.2d 605), and the absence of any safety device to protect plaintiff from the risk of injury when accessing the work area in the trench was the proximate cause of plaintiff's injuries (see Felker v. Corning, Inc., 90 N.Y.2d 219, 224, 660 N.Y.S.2d 349, 682 N.E.2d 950; cf. Weininger v. Hagedorn Co., 91 N.Y.2d 958, 960, 672 N.Y.S.2d 840, 695 N.E.2d 709, rearg. denied 92 N.Y.2d 875, 677 N.Y.S.2d 777, 700 N.E.2d 317). Furthermore, whether the work area at the location where plaintiff fell was 30 inches below grade, as described by defendant, or 10 feet below grade, as described by plaintiff, is not dispositive here; the extent of the elevation differential or the distance that a worker falls does not necessarily determine the applicability of Labor Law § 240(1) (see Rocovich v. Consolidated Edison Co., 262 A.D.2d 945, 701 N.Y.S.2d 538; Norton v. Bell Sons, 237 A.D.2d 928, 929, 654 N.Y.S.2d 512).
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.