Hamann v. City of New York

Full title: PATRICK HAMANN et al., Appellants, v. CITY OF NEW YORK, Defendant and…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Sep 11, 1995

219 A.D.2d 583 (N.Y. App. Div. 1995)

631 N.Y.S.2d 181

Opinion

September 11, 1995

Appeal from the Supreme Court, Queens County (Lerner, J.).

Ordered that the order is modified, on the law, by adding thereto a provision that upon searching the record partial summary judgment is granted to the defendant and so much of the complaint as asserts a cause of action under Labor Law § 240 (1) is dismissed; as so modified, the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

The hazards contemplated by Labor Law § 240 (1) are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured (see, Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 515). In this case, it is uncontroverted that the injured plaintiff Patrick Hamann sustained injuries when he was crushed by a boulder which moved apparently as a result of excavation he was performing in a trench. This hazard was not related to elevation differentials, as contemplated by the statute and the injured plaintiff was therefore not entitled to the type of protection afforded by Labor Law § 240 (1) (see, Rocovich v Consolidated Edison Co., supra). Thus, although the Supreme Court properly denied the plaintiffs' motion for summary judgment, upon searching the record, it should have granted partial summary judgment to the City of New York dismissing so much of the complaint as asserts a cause of action under Labor Law § 240 (1). Mangano, P.J., O'Brien, Ritter and Pizzuto, JJ., concur.