Summary
In Quishpi v. 80 WEA Owner, LLC, 145 A.D.3d 521, 522 (N.Y. App. Div. 1st Dep't 2016), the First Department relied on Medina to find that the statute does not apply to objects that are propelled upwards by kinetic energy.
Summary of this case from Jay v. Glob. Foundries U.S. Inc.Opinion
12-13-2016
Segundo QUISHPI, Plaintiff–Respondent–Appellant, v. 80 WEA OWNER, LLC, et al., Defendants–Appellants–Respondents. 80 WEA Owner, LLC, Third–Party Plaintiff–Appellant, Air Export Mechanical, Third–Party Defendant–Respondent.
Mauro Lilling Naparty LLP, Woodbury (Seth M. Weinberg of counsel), for 80 WEA Owner, LLC, appellant-respondent. Kerley, Walsh, Matera & Cinquemani, P.C., Seaford (Lauren B. Bristol of counsel), for Kras Interior Contracting Corp., appellant-respondent. Silberstein, Awad & Miklos, PC, Garden City (Joseph Awad of counsel), for respondent-appellant.
Mauro Lilling Naparty LLP, Woodbury (Seth M. Weinberg of counsel), for 80 WEA Owner, LLC, appellant-respondent.
Kerley, Walsh, Matera & Cinquemani, P.C., Seaford (Lauren B. Bristol of counsel), for Kras Interior Contracting Corp., appellant-respondent.
Silberstein, Awad & Miklos, PC, Garden City (Joseph Awad of counsel), for respondent-appellant.
TOM, J.P., FRIEDMAN, SAXE, FEINMAN, KAHN, JJ.
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered May 29, 2015, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on his Labor Law § 240(1) claim and granted defendants' motions for summary judgment dismissing that claim, denied defendants' motions for summary judgment dismissing the Labor Law § 241(6) claim insofar as it is predicated on violations of Industrial Code (12 NYCRR) §§ 23–1.8(c)(1) and 23–3.3(c), and denied defendant 80 WEA Owner, LLC's motion for a default judgment on its third-party complaint, unanimously modified, on the law, to grant defendants' motions as to the Labor Law § 241(6) claim, and otherwise affirmed, without costs, except as to the denial of 80 WEA's motion for a default judgment, the appeal from which is unanimously dismissed, without costs, as academic. The Clerk is directed to enter judgment dismissing the complaint.
Plaintiff was injured during the demolition of an elevator shaft when he tried to take down two 12–foot vertical steel beams topped by a horizontal steel beam approximately two feet long. He cut into the two vertical beams until they fell over in a "V" shape, and the horizontal beam, still attached to them, hit the floor. When plaintiff bent over to sever the horizontal beam from the left vertical beam, the beam sprang up and hit him in the face.
The Labor Law § 240(1) claim was correctly dismissed, because the record demonstrates that plaintiff's injuries were not the result of a failure to provide proper protection against "the application of the force of gravity to an object or person" (Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993] ), but rather the result of the propulsion of the vertical beam upward by "the kinetic energy of the sudden release of tensile stress in the [beam]" (Medina v. City of New York, 87 A.D.3d 907, 929 N.Y.S.2d 582 [1st Dept.2011] ).
The Industrial Code provisions on which the Labor Law § 241(6) claim is predicated are inapplicable to the facts of this case. 12 NYCRR 23–1.8(c)(1) requires hard hats where there is a risk of "being struck by falling objects or materials or where the hazard of head bumping exists" (Modeste v. Mega Contracting, Inc., 40 A.D.3d 255, 255–256, 835 N.Y.S.2d 156 [1st Dept.2007] ). 12 NYCRR 23–3.3(c) requires inspections during demolition of a structure "to detect any hazards ... resulting from weakened or deteriorated floors or walls or from loosened material," which refers to "structural instability caused by the progress of demolition" (see Garcia v. 225 E. 57th St. Owners, Inc., 96 A.D.3d 88, 93, 942 N.Y.S.2d 533 [1st Dept.2012] ).
In view of the foregoing, we need not reach 80 WEA Owner's alternative argument as to its motion for a default judgment on the third-party complaint.