Summary
In Richardson v Matarese (206 AD2d 353), the workers were injured while attempting to move an 800-pound radiator across the third floor of a building they were helping to renovate when the floor collapsed, causing the workers to fall to the floor below.
Summary of this case from Jones v. 414 Equities LLCOpinion
July 5, 1994
Appeal from the Supreme Court, Kings County (Vinik, J.).
Ordered that the order is reversed insofar as appealed from, with costs, and the plaintiffs' motion for partial summary judgment on the issue of liability under Labor Law § 240 (1) is denied.
The plaintiffs, employees of third-party defendant LMH Construction Company, were injured while attempting to move an 800 pound radiator across a plywood floor on the third floor of a building which the defendants third-party plaintiffs (hereinafter defendants) were renovating. As they moved the radiator across the floor, a set of beams underneath them disengaged from a header and the floor collapsed, sending the plaintiffs and the radiator to the floor below. There was evidence that the floor was not properly supported when the plaintiffs moved the radiator across it.
The collapse of the floor constituted a prima facie violation of Labor Law § 240 (1) (see, Dick v. Gates Constr. Corp, 146 A.D.2d 953; Lagzdins v. United Welfare Fund-Sec. Div., 77 A.D.2d 585). We find no merit to the defendants' contentions that Labor Law § 240 (1) is not implicated because the plaintiffs were injured as the result of the collapse of a permanent, rather than a temporary structure (see, Frierson v. Concourse Plaza Assocs., 189 A.D.2d 609; Collins v. County of Monroe Indus. Dev. Agency [COMIDA], 167 A.D.2d 914; Kennedy v. McKay, 86 A.D.2d 597), or as the result of the collapse of the work site itself, rather than a safety device enumerated in Labor Law § 240 (1) (see, Hagins v. State of New York, 81 N.Y.2d 921; Kennedy v. McKay, supra, at 597).
However, there was evidence that the plaintiffs were instructed to break up the radiator and throw the pieces out the window. Instead, the plaintiffs decided to remove the radiator in one piece, and did so by turning it end over end, allowing at least some of the 800 pound weight of the radiator to hit the floor. Given this evidence, there is an issue of fact as to whether a violation of Labor Law § 240 (1) was a proximate cause of the plaintiffs' injuries (see, Styer v. Vita Constr., 174 A.D.2d 662; Mack v. Altmans Stage Light. Co., 98 A.D.2d 468). Mangano, P.J., Altman, Hart and Florio, JJ., concur.