Opinion
CA 02-02390
June 13, 2003.
Appeal from that part of an order of Supreme Court, Onondaga County (Carni, J.), entered July 10, 2002, that granted defendants' motion for summary judgment dismissing the complaint.
COTE LIMPERT, SYRACUSE (THEODORE H. LIMPERT OF COUNSEL), FOR PLAINTIFF-APPELLANT.
BOND, SCHOENECK KING, PLLC, SYRACUSE (DONALD S. DI BENEDETTO OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Plaintiff commenced this Labor Law and common-law negligence action seeking damages for back injuries he sustained while carrying steel purlins, to be used in the construction of the roof of a building. The purlins were approximately 20 feet long and weighed a minimum of 50 to 75 pounds. On the day before plaintiff's accident, the purlins were stacked onto the I-beams of the roof by the use of a crane, but the crane was no longer at the job site on the day of the accident. Plaintiff's back "popped" while plaintiff and his coworker were manually placing the purlins into position. Defendants moved for summary judgment dismissing the complaint, and plaintiff opposed the motion only with respect to the claims pursuant to Labor Law 240(1) and 241(6), conceding that defendants are not liable under Labor Law 200 or for common-law negligence. Thus, we address only the propriety of Supreme Court's dismissal of the claims pursuant to Labor Law 240(1) and 241(6).
Contrary to plaintiff's contention, Labor Law 240(1) is not applicable to the facts of this case. That section applies to falling worker or falling object cases ( see Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267-268), and here plaintiff did not fall, nor did an object fall on him. The fact that plaintiff was injured while working at an elevation is not determinative ( see Schwab v. A.J. Martini, Inc., 288 A.D.2d 654, 655, lv denied 97 N.Y.2d 609). "[E]ven if plaintiff's injuries were caused by the absence of a hoist or other safety device, they were not the result of the limited type of elevation-related hazards encompassed by Labor Law 240(1), and there is no basis for liability under that statute" ( id. at 655-656). Plaintiff was exposed to the usual and ordinary dangers of a construction site and not the extraordinary elevation risks envisioned by Labor Law 240(1) ( see Rodriguez v. Tietz Ctr. for Nursing Care, 84 N.Y.2d 841, 843), and thus the court properly granted that part of defendants' motion with respect to that claim.
The court also properly granted that part of defendants' motion with respect to the Labor Law 241(6) claim. Contrary to the contention of plaintiff, he has not alleged the violation of a specific regulation requiring the use of a mechanical device for moving the steel purlins to support the Labor Law 241(6) claim ( see Comes v. New York State Elec. Gas Corp., 189 A.D.2d 945, 946-947, affd 82 N.Y.2d 876). In support of that claim, plaintiff alleges the violation of 12 NYCRR 23-1.2(e), 23-1.5, 23-2.3, and subparts 23-6 and 23-8. Section 23-1.2(e) is not sufficiently specific to support a Labor Law 241(6) claim ( see Schwab, 288 A.D.2d at 656; McGrath v Lake Tree Vil. Assoc., 216 A.D.2d 877, 878; Biszick v. Ninnie Constr. Corp., 209 A.D.2d 661; Narrow v. Crane-Hogan Structural Sys., 202 A.D.2d 841, 842-843). Similarly, section 23-1.5 sets forth only a general safety standard, which is insufficient to support a Labor Law 241(6) claim ( see Danchick v. Contegra Servs., 299 A.D.2d 923, 924; Schwab, 288 A.D.2d at 656; Sihly v. New York City Tr. Auth., 282 A.D.2d 337, lv dismissed 96 N.Y.2d 897; Thompson v. Marotta, 256 A.D.2d 1124, 1125; McGrath, 216 A.D.2d at 878).
We agree with plaintiff that 12 NYCRR 23-2.3(a)(1) is sufficiently specific to support a Labor Law 241(6) claim ( see Young v. Buffalo Color Corp., 255 A.D.2d 920), but we conclude that the regulation is inapplicable to the facts of this case. Section 23-2.3(a)(1) provides in relevant part that, "[d]uring the final placing of structural steel members, loads shall not be released from hoisting ropes until such members are securely fastened in place." Even assuming, arguendo, that purlins are "structural steel members," we conclude that the regulation does not require that hoisting ropes be used for the placing of structural steel members. Rather, the regulation applies only when hoisting ropes are actually used for the placing of structural steel members. Thus, because no hoisting ropes were used by plaintiff, the regulation is inapplicable.
Finally, even assuming, arguendo, that subparts 23-6 and 23-8 are sufficiently specific to support the Labor Law 241(6) claim, we conclude that those subparts are inapplicable to the facts of this case. Although both subparts set forth standards for the use of hoisting devices, they do not specify when the use of such devices is required. Because no hoisting devices were used in this case, the regulations under subparts 23-6 and 23-8 do not apply ( see Flihan v Cornell Univ., 280 A.D.2d 994; Hawkins v. City of New York, 275 A.D.2d 634, 635; Smith v. Homart Dev. Co., 237 A.D.2d 77, 79-80; Lysiak v. Murray Realty Co., 227 A.D.2d 746, 750).