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Dilluvio v. City of New York

Court of Appeals of the State of New York
Nov 30, 2000
95 N.Y.2d 928 (N.Y. 2000)

Summary

affirming dismissal where there was no "exceptionally dangerous condition" or "significant risk" posed by an elevation differential of three feet between the ground and the tailgate of the pickup upon which plaintiff was seated

Summary of this case from Chiarello v. Turner Constr. Co.

Opinion

Decided November 30, 2000.

APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered March 2, 2000, which affirmed an order of the Supreme Court (Janice L. Bowman, J.), entered in Bronx County, which denied plaintiff's motion for partial summary judgment on their Labor Law § 240 (1) claim, and granted defendant's cross motion to dismiss that claim. The Appellate Division certified the following question: "Was the order of the Supreme Court, as affirmed by this Court, properly made?"

Plaintiff was a highway construction worker on a project on the Hutchinson River Parkway. In order to safely perform the project, the right lane of the parkway had to be closed. To close a lane, one worker would sit on the open tailgate of a pickup truck, which was only three feet above the ground, and hand cones to a co-worker walking behind the truck and placing the cones on the pavement. When plaintiff and a co-worker climbed onto the back of the pickup to be taken to the beginning of the project to commence placing the cones, the pickup lurched forward, causing plaintiff to fall from the tailgate onto the pavement and sustain injuries.

Plaintiff's commenced this action against defendant City alleging, inter alia, that the work the plaintiff was performing was within the scope of Labor Law § 240 (1) because he was working on an elevated platform and defendant, as owner of the parkway, failed to provide him with safety devices to protect him from falling from the platform. Supreme Court denied plaintiff's motion for summary judgment and granted defendant's cross motion for an order dismissing the section 240 (1) claim.

The majority at the Appellate Division concluded, inter alia, that since plaintiff was not subject to any exceptionally dangerous condition related to being on an elevated work site, he was not exposed to the type of risks covered by the Labor Law.

Submitted by Alexander J. Wulwick, for appellants.

Submitted by Joseph F.X. Savona, for respondent.


MEMORANDUM:

The order of the Appellate Division should be affirmed with costs and the certified question answered in the affirmative.

The Appellate Division correctly determined that, as a matter of law, the accident did not result from an elevation-related risk (see Bond v. York Hunter Constr., 95 N.Y.2d 883, 2000 N.Y. Slip Opn 07697 [decided 9/19/00]; Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514-515).

On review of submissions pursuant to section 500.4 of the Rules, order affirmed, with costs, and certified question answered in the affirmative, in a memorandum. Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley and Rosenblatt concur.


Summaries of

Dilluvio v. City of New York

Court of Appeals of the State of New York
Nov 30, 2000
95 N.Y.2d 928 (N.Y. 2000)

affirming dismissal where there was no "exceptionally dangerous condition" or "significant risk" posed by an elevation differential of three feet between the ground and the tailgate of the pickup upon which plaintiff was seated

Summary of this case from Chiarello v. Turner Constr. Co.

In Dilluvio v. City of New York (95 NY2d 928), we reached a similar result where the plaintiff fell some three feet from the back of a pickup truck in which he was riding.

Summary of this case from Toefer v. Long Is. R.R

In Dilluvio v. City of New York, 95 N.Y.2d 928, 721 N.Y.S.2d 603, 744 N.E.2d 138, the Court of Appeals held that a worker who fell from the back of a pickup truck in which he was riding was not protected by Labor Law § 240(1) because, as a matter of law, the accident did not result from an elevation-related risk.

Summary of this case from Eddy v. John Hummel Custom Builders, Inc.

repaying a portion of a parkway at grade does not constitute work on a structure for purposes of Labor Law § 240

Summary of this case from Olshewitz v. City of New York
Case details for

Dilluvio v. City of New York

Case Details

Full title:FRANCISCO DILLUVIO ET AL., APPELLANTS, v. THE CITY OF NEW YORK, RESPONDENT

Court:Court of Appeals of the State of New York

Date published: Nov 30, 2000

Citations

95 N.Y.2d 928 (N.Y. 2000)
721 N.Y.S.2d 603
744 N.E.2d 138

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