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.