We grant summary judgment to defendant on the ground that the three-foot stairway, which had been in place since the late 1990's until plaintiffs accident on October 22, 2003, was neither a safety device nor a temporary stairway to protect a worker from an elevation-related risk within the meaning of the statute. The middle step was not of sufficient height to trigger the protection of section 240 (1), nor was plaintiff exposed to the type of extraordinary risk for which the statute was designed ( see Toefer v Long Is. R.R., 4 NY3d 399 [holding that a four-to-five-foot descent or fall from a flatbed truck was not an elevation-related risk that triggers section 240 (1) coverage because safety devices of the kind listed in the statute are normally associated with more dangerous activity]; see also Torkel v NYU Hosps. Ctr., 63 AD3d 587; DeStefano v Amtad N.Y., 269 AD2d 229; and DeMayo v 1000 N. of N.Y. Co., 246 AD2d 506 [which hold that modest height differentials do not give rise to section 240 (1) liability]). The dissent reads Runner v New York Stock Exch., Inc. ( 13 NY3d 599) too broadly.
Whatever its merit, this new argument is not properly before this Court because defendants' failure to raise it before the motion court deprived plaintiff of the opportunity to submit evidence with which to refute it ( see e.g. Douglas Elliman-Gibbons Ives v Kellerman, 172 AD2d 307, 308, lv denied 78 NY2d 856). However, given that the bottom of the ramp was resting on the street and the top was resting on the adjacent sidewalk curb, and the height differential from the bottom to the top was at most 12 to 18 inches, we agree with defendants that plaintiff was not exposed to an elevation-related hazard as contemplated by section 240 (1) ( see DeStefano v Amtad N.Y., 269 AD2d 229 [ramp rising 12 inches from ground to building entrance did not present an elevation-related hazard]; DeMayo v 1000 N. of N.Y. Co., 246 AD2d 506 [13-inch-high step from ground to shanty entrance not an elevation-related hazard]; cf. Arrasti v HRH Constr. LLC, 60 AD3d 582 [section 240 (1) claim stated where plaintiff fell from ramp connecting concrete floor with hoist platform constructed about 18 inches above floor]). Plaintiffs Labor Law § 241 (6) claims predicated on Industrial Code (12 NYCRR) § 23-1.7 (f) and § 23-1.22 (b) should have been dismissed.
The sufficiency of an elevation differential and fall from a height for purposes of Labor Law § 240(1) liability cannot, unfortunately, be reduced to a numerical bright-line test or automatic minimum/maximum quantification and, indeed, as we recognized in Amo I ( 268 A.D.2d 712, 717, supra), the extent of the elevation differential may not, by itself, necessarily determine whether section 240(1) applies (see Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514). On one side of the spectrum, de minimis elevations involving falls at or very near ground level are insufficient (see id. at 514; 268 A.D.2d 712, 717,supra [and cases cited therein]; see also Cundy v. New York State Elec. Gas Corp., 273 A.D.2d 743, lv denied 95 N.Y.2d 766; Sousa v. American Ref-Fuel Co. of Hempstead, 258 A.D.2d 514; De Mayo v. 1000 N. of N.Y. Co., 246 A.D.2d 506; Duffy v. Bass D'Allesandro, 245 A.D.2d 333). On the other end of the spectrum, otherwise qualifying falls of several feet have been determined to be sufficiently elevated so as to fit within the intended protective scope of Labor Law § 240 (1) (see Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 561; Congi v. Niagara FrontierTransp. Auth., 294 A.D.2d 830; Gettys v. Port Auth. of N.Y. N.J., 248 A.D.2d 226; Casabianca v. Port Auth. of N.Y. N.J., 237 A.D.2d 112; De Long v. State St. Assoc., 211 A.D.2d 891; Vurchio v. Kalikow Lincoln Dev. Co., 187 A.D.2d 280; cf. Dilluvio v. City of New York, 264 A.D.2d 115, affd 95 N.Y.2d 928; Francis v. Aluminum Co. of Am., 240 A.D.2d 985; De Puy v. Sibley, Lindsay Curr Co., 225 A.D.2d 1069, 1070). This case, involving an otherwise qualifying elevation differential of 15 to 16 inches, represents a middle ground, of sorts, in reported Labor Law § 240(1) jurisprudence and we find support for Supreme Court's conclusion that, considering all of the circu
The area where the anchors or hooks were to be placed was only six feet from the floor, one-half to one inch above plaintiff's head. It is uncontested that plaintiff did not need the elevation provided by the ramp/platform to perform his task. Under these circumstances, the motion court properly dismissed plaintiff's Labor Law § 240(1) claim, since plaintiff's task did not involve "a significant risk inherent in the particular task because of the relative elevation at which the task must be performed" (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514). In short, plaintiff's task did not present an elevation risk within the contemplation of Labor Law § 240(1), but rather "the type of ordinary and usual peril a worker is commonly exposed to at a construction site" (Sousa v. Am. Ref-Fuel Co. of Hempstead, 258 A.D.2d 514, 515; see also, DeStefano v. Amtad New York, Inc., 269 A.D.2d 229; DeMayo v. 1000 N. of New York Co., 246 A.D.2d 506). The motion court also properly dismissed plaintiff's cause of action predicated on Labor Law § 241(6), since plaintiff failed to articulate the violation of any specific Industrial Code rule or regulation (see,Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 349-350; Keegan v. Swissotel New York, Inc., 262 A.D.2d 111, 113, lv dismissed 94 N.Y.2d 858).
) was designed to prevent (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500-501). To the contrary, plaintiff "was exposed to the usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law § 240 Lab. (1)" (Rodriguez v. Tietz Ctr. for Nursing Care, 84 N.Y.2d 841, 843; see, Maggi v. Innovax Methods Group Co., 250 A.D.2d 576, lv denied 92 N.Y.2d 819 [worker slipped on sand and fell on a ramp on the roof of a building]; Ozzimo v. H.E.S. Inc., 249 A.D.2d 912 [worker fell into open five-foot trench]; Bradshaw v. National Structures, 249 A.D.2d 921 [worker fell or slid into a drainage trench]; Farmer v. City of Niagara Falls, 249 A.D.2d 922 [worker lost his balance attempting to climb over an interior wall on the second-floor deck of a building under construction, causing him to fall three or four feet]; Duke v. Eastman Kodak Co., 248 A.D.2d 990 [worker stepped into uncovered opening of access hole to underground tank]; De Mayo v. 1000 N. of N Y Co., 246 A.D.2d 506 [worker injured his knee stepping from doorway to sloped ground 13 inches below]). In sum, it is our view that in these circumstances, involving the irregular surface of an excavation site, there is no factual issue for a jury and the Labor Law § 240 Lab. (1) cause of action should have been dismissed as a matter of law (see,Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514-515; Ozzimo v H.E.S. Inc., supra, at 914).
However, under the circumstances, the plaintiff is not entitled to summary judgment on this cause of action. The plaintiff's argument concerning his Labor Law § 240 Lab.(1) claim is without merit ( see, DeMayo v. 1000 N., 246 A.D.2d 506). Mangano, P. J., Sullivan, Joy and Altman, JJ., concur.
Applying this law to the facts here, this court finds that the 10 to 12 inch elevation differential traversed by the ramp is not a physically significant elevation differential for purposes of section 240 (1) (see Eliassian v F.F. Constr., Inc., 190 A.D.3d 947, 949 [2d Dept 2021]; Jackson v Hunter Roberts Constr. Group, LLC, 161 A.D.3d 666, 667 [1st Dept 2018]; Sawcyszyn v New York Univ., 158 A.D.3d 510, 511 [1st Dept 2018]; Torkel v NYU Hosps. Ctr., 63 A.D.3d 587, 590 [1st Dept 2009]; DeMayo v 1000 N. of N.Y. Co., 246 A.D.2d 506, 507 [2d Dept 1998]; see also Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 514-515 [1991]; cf. Kandatyan v 400 Fifth Realty, LLC, 155 A.D.3d 848, 850851 [2d Dept 2017] [plaintiff pushing heavily loaded cart on a four-to-five-foot-high ramp]). Additionally, under the circumstances, the court finds that there is no section 240 (1) safety device which would have been expected or needed based on the apparent stability of the duct lift
re, the record shows that the plaintiff's injuries did not result from the type of elevation related hazard to which the statute applies (see Lombardo v Park Tower Mgt. Ltd., 76 AD3d 497, 498 [2010][holding that plaintiff's fall from the middle step of a three step stairway, which was approximately 18 inches high, "was not of sufficient height to trigger the protection of section 240 (1), nor was plaintiff exposed to the type of extraordinary risk for which the statute was designed"]; Toefer v Long Is. R.R., 4 NY3d 399, [2005] [holding that a four- to five-foot descent or fall from a flatbed truck was not an elevation-related risk that triggers section 240 [1] coverage because safety devices of the kind listed in the statute are normally associated with more dangerous activity]; Torkel v NYU Hosps. Ctr., 63 AD3d 587 [2009] [court found that plaintiff was not exposed to an elevation-related hazard as contemplated by section 240 (1) when he fell 12 to 18 inches from a makeshift ramp]; DeMayo v 1000 N. of N.Y. Co., 246 AD2d 506, 507 [1988] [court held that plaintiff's fall from a "13-inch high step is not an elevation-related hazard contemplated by the statute]; see also Parker v 205-209 E. 57th St. Assoc., LLC, 100 AD3d 607, 609 [2012] [holding that plaintiff's injuries sustained when he fell after stepping through a doorway which was several feet above the level of the lower roof of the building on which he was working did not result from the type of elevation related hazard to which Labor Law§ 240 (1) applies]). Defendants have demonstrated that the risk to plaintiff was not the type of extraordinary peril § 240 (1) was designed to prevent.