Flihan v. Cornell University

3 Citing cases

  1. Flihan v. Cornell University

    280 A.D.2d 994 (N.Y. App. Div. 2001)   Cited 16 times

    Plaintiff and his wife commenced this action against defendant, the owner of the property where plaintiff was working, alleging causes of action in common-law negligence and based upon violation of Labor Law §§ 200, 240 (1), and § 241 (6). On a prior appeal, we concluded that plaintiffs were not entitled to partial summary judgment on the Labor Law § 240 (1) cause of action and granted defendant's cross motion for summary judgment dismissing that cause of action ( Flihan v. Cornell Univ., 237 A.D.2d 921). Thereafter, defendant moved for summary judgment dismissing the remaining causes of action.

  2. Webster v. Wetzel

    262 A.D.2d 1038 (N.Y. App. Div. 1999)   Cited 5 times

    Memorandum: Plaintiff seeks to recover damages for injuries he sustained when the rear gate of a dump truck gave way and released 10 tons of stone onto him. Supreme Court properly granted the motion of third-party defendant for summary judgment dismissing the complaint and denied plaintiff's cross motion for partial summary judgment on liability under Labor Law § 240 Lab. (1) and § 241 Lab. (6). We reject plaintiff's contention that the accident involved an elevation-related hazard covered by Labor Law § 240 Lab. (1) (see, Tillman v. Triou's Custom Homes, 253 A.D.2d 254 [decided Mar. 19, 1999]; Phelan v. State of New York, 238 A.D.2d 882, lv denied 90 N.Y.2d 812; Flihan v. Cornell Univ., 237 A.D.2d 921; cf., Orr v. Christa Constr., 206 A.D.2d 881). We also reject plaintiff's contention that 12 NYCRR 23-1.5 (c) is specific enough to support the Labor Law § 241 Lab. (6) claim (see, Ozzimo v. H.E.S., Inc., 249 A.D.2d 912; Dann v. City of Syracuse, 231 A.D.2d 855; Williams v. White Haven Mem. Park, 227 A.D.2d 923; contra, Gonzalez v. United Parcel Serv., 249 A.D.2d 210; McCormack v. Helmsley-Spear, Inc., 233 A.D.2d 203).

  3. Phelan v. State

    238 A.D.2d 882 (N.Y. App. Div. 1997)   Cited 19 times
    In Phelan v. State of New York, 661 N.Y.S.2d 109 (4 Dept. 1997), the Court held that plaintiff's claims should have been dismissed where plaintiff was injured during a renovation project on the New York State Throughway Bridge where guardrails had to be removed from the bridge and plaintiff was loading them onto flatbed trucks.

    Those special hazards, however, "do not encompass any and all perils that may be connected in some tangential way with the effects of gravity" ( Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501; see also, Rodriguez v. Tietz Ctr. for Nursing Care, 84 N.Y.2d 841, 843-844). We conclude that an incident involving objects falling from the bed of a flatbed truck is not the type of special, elevation-related hazard contemplated by Labor Law § 240 (1) ( see, Flihan v. Cornell Univ., 237 A.D.2d 921; DePuy v. Sibley, Lindsay Curr Co., 225 A.D.2d 1069; Malecki v. Wal-Mart Stores, 222 A.D.2d 1010; Colopy v. William C. McCombs, Inc., 203 A.D.2d 920). Claimants' reliance upon Orr v. Christa Constr. ( 206 A.D.2d 881) is misplaced because the issue in that case was whether claimant was engaged in a protected activity ( see, Flihan v Cornell Univ., supra). Because claimants failed to allege the violation of a specific provision of the Industrial Code in either the claim or the bill of particulars, the Labor Law § 241 (6) cause of action should have been dismissed ( see, Orr v. Christa Constr., supra, at 882).