Summary
In Ali v Sloan-Kettering Inst., 176 AD3d 561 [1st Dept 2019], a plaintiff was injured when an air conditioner coil that weighed approximately 300 pounds tipped over while on the truck's liftgate and fell on his leg as he and three coworkers were unloading it.
Summary of this case from Corning v. Elms Realty Corp.Opinion
10161 Index 311165/11
10-22-2019
Nasir ALI, Plaintiff–Appellant, v. SLOAN–KETTERING INSTITUTE FOR CANCER RESEARCH, et al., Defendants–Respondents, Turner Construction Company, Defendant. Sloan–Kettering Institute for Cancer Research, et al., Third–Party Plaintiffs, v. CM Air Conditioning Contractors, Inc., Third–Party Defendant–Respondent.
Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for appellant. Dopf, P.C., New York (Martin B. Adams of counsel), for Sloan–Kettering Institute for Cancer Research, Memorial Hospital for Cancer and Allied Diseases, JGN Construction Corp., JGN Construction Management, LLC, Memorial Sloan Kettering Cancer Center, and Memorial Sloan Kettering Institute for Cancer Research, respondents. Lester Schwab Katz & Dwyer, LLP, New York (Paul M. Tarr of counsel), for CM Air Conditioning Contractors, Inc., respondent.
Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for appellant.
Dopf, P.C., New York (Martin B. Adams of counsel), for Sloan–Kettering Institute for Cancer Research, Memorial Hospital for Cancer and Allied Diseases, JGN Construction Corp., JGN Construction Management, LLC, Memorial Sloan Kettering Cancer Center, and Memorial Sloan Kettering Institute for Cancer Research, respondents.
Lester Schwab Katz & Dwyer, LLP, New York (Paul M. Tarr of counsel), for CM Air Conditioning Contractors, Inc., respondent.
Renwick, J.P., Gische, Tom, Gesmer, Moulton, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about August 21, 2018, which, to the extent appealed from, granted defendants-respondents' and third-party defendant's motions for summary judgment dismissing the Labor Law §§ 240(1) and 241(6), claims and denied plaintiff's motion for partial summary judgment on the section 240(1) claim, unanimously modified, on the law, to deny defendants-respondents' and third-party defendant's motions as to the Labor Law § 240(1) claim, and grant plaintiff's motion, and otherwise affirmed, without costs.
Plaintiff was injured when an air conditioning system coil that weighed at least 300 pounds and was being transported secured to two dollies fell on his leg as he and three coworkers unloaded it from a truck. After plaintiff and his coworkers had brought the coil to ground level on the truck's lift gate and were attempting to move it off the lift gate, a wheel of a dolly became caught in a gap on the lift gate, and the coil tipped over.
In view of the weight of the coil and the amount of force it was able to generate, even in falling a relatively short distance, plaintiff's injury resulted from a failure to provide protection required by Labor Law § 240(1) against a risk arising from a significant elevation differential (see Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 604–605, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009] ; Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 10, 935 N.Y.S.2d 551, 959 N.E.2d 488 [2011] ; Marrero v. 2075 Holding Co. LLC, 106 A.D.3d 408, 409, 964 N.Y.S.2d 144 [1st Dept. 2013] ). Moving the coil safely required either hoisting equipment or a device designed to secure the coil against tipping or falling over (see Suwareh v. State of New York, 24 A.D.3d 380, 380–381, 806 N.Y.S.2d 524 [1st Dept. 2005] ; Grant v. Solomon R. Guggenheim Museum, 139 A.D.3d 583, 584, 139 A.D.3d 583 [1st Dept. 2016] ; see also Runner, 13 N.Y.3d at 604, 895 N.Y.S.2d 279, 922 N.E.2d 865 ). No such equipment was provided. The Labor Law § 241(6) claim was correctly dismissed. Industrial Code ( 12 NYCRR) § 23–1.7(e)(1) is inapplicable as a predicate for liability under the statute because the lift gate of the truck was not a passageway (see Quigley v. Port Auth. of N.Y. & N.J., 168 A.D.3d 65, 67, 90 N.Y.S.3d 156 [1st Dept. 2018] ; DePaul v. N.Y. Brush LLC, 120 A.D.3d 1046, 1047, 994 N.Y.S.2d 59 [1st Dept. 2014] ). Industrial Code § 23–1.7(e)(2) is inapplicable because the accident was not caused by an accumulation of dirt or debris, scattered tools or materials, or a sharp projection. Industrial Code § 1.28(b) is inapplicable because the accident was not caused by a defect in the dollywheel, which the evidence shows was in good working order (see Garcia v. 95 Wall Assoc., LLC, 116 A.D.3d 413, 983 N.Y.S.2d 237 [1st Dept. 2014] ).