Opinion
April 15, 1994
Appeal from the Supreme Court, Monroe County, Siracuse, J.
Present — Green, J.P., Balio, Fallon, Callahan and Boehm, JJ.
Order modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff Wilbur McCloud sustained injury when the metal cap on top of the utility pole he was removing dislodged and struck him on the head. The work necessary to prepare the pole for its removal by plaintiff had been performed by defendant's crew at a height of over 20 feet.
Supreme Court erred in denying plaintiffs' motion for partial summary judgment on the cause of action alleging defendant's violation of Labor Law § 240 (1) and in dismissing that cause of action. The pole is a structure within the meaning of the statute (see, Lewis-Moors v Contel of N.Y. 78 N.Y.2d 942, 943; Salzler v New York Tel. Co., 192 A.D.2d 1104; Dedario v New York Tel. Co., 162 A.D.2d 1001, 1002-1003). Defendant, the owner of the pole, had a nondelegable duty to provide proper safety devices to protect workers from injury "in circumstances where there are risks related to elevation differentials" (Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 514; see also, Gordon v Eastern Ry. Supply, 82 N.Y.2d 555; Salzler v New York Tel. Co., supra), including the risk of being struck by falling objects (see, Fitzgibbons v Olympia York Battery Park Co., 182 A.D.2d 1069, 1070). Plaintiffs are entitled to summary judgment on the issue of liability under Labor Law § 240 (1) because the proof establishes that plaintiff's injuries resulted from an object falling from an elevated worksite (cf., Ruiz v 8600 Roll Rd., 190 A.D.2d 1030; Carringi v International Paper Co., 184 A.D.2d 137; Krencik v Towne Red Hots, 171 A.D.2d 1033).
All concur except Callahan and Boehm, JJ., who dissent in part and vote to affirm for reasons stated in decision at Supreme Court, Siracuse, J.