Opinion
2019–11117 Index No. 700051/18
01-12-2022
Ernesto SANCHEZ, appellant, v. 74 WOOSTER HOLDING, LLC, respondent.
Lipsig, Shapey, Manus & Moverman, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Diane Toner ], of counsel), for appellant. Mulholland Minion Davey McNiff & Beyrer, Williston Park, NY (Kevin R. McNiff and Morgann C. McCarthy of counsel), for respondent.
Lipsig, Shapey, Manus & Moverman, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Diane Toner ], of counsel), for appellant.
Mulholland Minion Davey McNiff & Beyrer, Williston Park, NY (Kevin R. McNiff and Morgann C. McCarthy of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Larry L. Love, J.), entered August 21, 2019. The order denied the plaintiff's motion for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6).
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly sustained personal injuries after he tripped and fell into an empty swimming pool while performing construction work on premises owned by the defendant. The plaintiff was an employee of nonparty ABR Molding Andy, LLC (hereinafter ABR), at the time of the accident, and was working at the premises pursuant to a construction contract between the defendant and ABR. The plaintiff thereafter commenced this action against the defendant alleging violations of Labor Law §§ 200, 240(1), and 241(6). Following discovery, the plaintiff moved for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6). In an order entered August 21, 2019, the Supreme Court denied the plaintiff's motion. The plaintiff appeals.
The Supreme Court properly denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). Labor Law § 240(1) requires property owners and contractors to provide workers with "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection" to the workers. The purpose of the statute is to protect against "such specific gravity-related accidents as falling from a height or being struck by a falling object" ( Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 ). "In determining the applicability of the statute, ‘the single decisive question is whether [the] plaintiff's injuries were the direct consequence of [the] failure to provide adequate protection against a risk arising from a physically significant elevation differential’ " ( Lemus v. New York B Realty Corp., 186 A.D.3d 1351, 1352, 128 N.Y.S.3d 878, quoting Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865 ). Here, the evidence submitted by the plaintiff in support of the motion failed to establish, prima facie, that the accident resulted from the kind of elevation-related hazards contemplated by Labor Law § 240(1). The plaintiff testified at his deposition that he fell into the empty swimming pool after he tripped while walking on an adjacent, level patio. Accordingly, the plaintiff failed to demonstrate his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause action alleging a violation of Labor Law § 240(1) (see Bellantoni v. I.C.E. Constr. Corp., 271 A.D.2d 560, 561, 706 N.Y.S.2d 146 ; Mazzu v. Benderson Dev. Co., 224 A.D.2d 1009, 1010–1011, 637 N.Y.S.2d 540 ; see also Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 98–99, 7 N.Y.S.3d 263, 30 N.E.3d 154 ).
The Supreme Court also properly denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 241(6). The plaintiff failed to establish, prima facie, that any of the Industrial Code provisions upon which the alleged violation of Labor Law § 241(6) is predicated apply to the circumstances of his accident (see Aragona v. State of New York, 147 A.D.3d 808, 809, 47 N.Y.S.3d 115 ; Mercado v. TPT Brooklyn Assoc., LLC, 38 A.D.3d 732, 733, 832 N.Y.S.2d 93 ). Accordingly, the plaintiff failed to demonstrate his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 241(6).
The defendant's contention regarding the admissibility of certain deposition transcripts is without merit.
BRATHWAITE NELSON, J.P., RIVERA, FORD and DOWLING, JJ., concur.