Summary
In Missico v. Tops Markets, Inc., 305 AD2d 1052, 758 NYS2d 890 (4th Dept 2003), in which a worker fell while pushing a wheelbarrow with debris up a ramp to a dumpster, the Fourth Department held that 240(1) applied because the ramp was a tool used in the performance of the plaintiff's work and not merely as a passageway from one place of work to another.
Summary of this case from Lewis v. Brighton OneOpinion
CA 02-02018
May 2, 2003.
Appeal from an order of Supreme Court, Erie County (Martoche, J.), entered June 5, 2002, which, inter alia, granted plaintiffs' motion for partial summary judgment on the Labor Law 240(1) claim.
DIXON HAMILTON, LLP, GETZVILLE (MICHAEL B. DIXON OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
LAW OFFICES OF MICHAEL D. BRAISTED, WILLIAMSVILLE (MICHAEL D. BRAISTED OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: PINE, 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:
Plaintiffs commenced this action seeking damages for injuries sustained by Michael Missico (plaintiff) when he fell from a plywood ramp 10 to 12 feet in length that connected a loading dock to a garbage dumpster. The ramp was 4 to 5 feet high at the loading dock and 8 to 10 feet high at the dumpster. The ramp gave way while plaintiff was pushing a wheelbarrow filled with debris up the ramp for disposal in the dumpster. Supreme Court properly granted plaintiffs' motion for partial summary judgment on the Labor Law 240(1) claim and denied the cross motion of Tops Markets, Inc. and Benderson-French Associates, LLC (collectively, defendants) for partial summary judgment dismissing that claim. Contrary to defendants' contention, plaintiff was subjected to an elevation-related risk because the ramp was a "tool used in the performance of the plaintiff's work" and was not merely a passageway from one place of work to another ( Ryan v Morse Diesel, 98 A.D.2d 615, 616; see McCann v. Central Synagogue, 280 A.D.2d 298; Reisch v. Amadori Constr. Co., 273 A.D.2d 855, 856-857; Jablonski v. Everest Constr. Trade Corp., 264 A.D.2d 381; cf. Straight v. McCarthy Bros. Co., 222 A.D.2d 775). Defendants' reliance on DePuy v. Sibley, Lindsay Curr Co. ( 225 A.D.2d 1069, 1070) is misplaced. That case involved the removal of objects from the back of a truck and did not involve the extraordinary elevation-related risks envisioned by the statute ( see id.).
Contrary to the further contention of defendants, "the task in which [plaintiff] was engaged [was] performed during `the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure'" ( Martinez v. City of New York, 93 N.Y.2d 322, 326; see Rivera v. Squibb Corp., 184 A.D.2d 239, 240) and thus is covered by Labor Law 240(1).