Opinion
November 2, 2000.
Barbara M. Berk, for Plaintiff-Respondent.
Deborah F. Peters, for Defendant-Appellant.
Deborah F. Peters, for Third-Party Plaintiff-Appellant.
Jonathan Uejio, for Third-Party Defendant-Respondent.
Rosenberger, J.P., Tom, Wallach, Rubin, Saxe, JJ.
Order, Supreme Court, Bronx County (Bertram Katz, J.), entered November 30, 1999, which, to the extent appealed from as limited by the brief, granted plaintiff "s motion for partial summary judgment on his Labor Law § 240 (1) claim and denied defendant VRH Construction Corporation's cross motion for summary judgment dismissing the complaint for plaintiff's failure to demonstrate the applicability of Labor Law §§ 240 (1), 241 (6) and 200, unanimously modified, on the law, to grant the cross motion of defendant VRH Construction Corporation insofar as to dismiss plaintiff's claims pursuant to Labor Law § 241 (6), and otherwise affirmed, without costs.
Plaintiff, an employee of third-party defendant Ebner Woodworking Company, was injured while working on the construction of the Admirals Club located in the American Airlines terminal at John F. Kennedy Airport, when a gang box, which he and a co-worker were sliding down an internal staircase, slid into plaintiff. Hoists constructed by Ebner, that had been used to transport gang boxes to the job site, were dismantled at the direction of American Airlines near completion of the project, but prior to plaintiff's accident. After plaintiff was specifically prohibited from removing the remaining gang boxes and other materials from the job site by elevator, plaintiff removed the gang boxes from the work site by transporting them manually down six flights of stairs, and, as noted, in the course of so doing was injured.
We hold that plaintiff's injuries were attributable to activity implicating the extraordinary elevation-related risks that Labor Law § 240 (1) was intended to obviate, and that the grant of partial judgment upon plaintiff's Labor Law § 240 (1) claim was proper.
However, the motion court should have granted that part of VRH's cross motion seeking dismissal of plaintiff's Labor Law § 241 (6) cause of action. Plaintiff's reliance upon 12 NYCRR §§ 23-1.7 (f) and 23-7.3 (a) in support of his § 241 (6) cause of action is misplaced since the cited Industrial Code sections have no application to the facts at bar. Plaintiff was not injured as a result of a defect in the staircase or debris left thereon in violation of 12 NYCRR § 23-1.7 (f), and it is clear that American's elevator was not in fact utilized as a hoist and, accordingly, that there was no violation of 12 NYCRR § 23-7.3 (a).
Plaintiff has also presented a viable claim under Labor Law § 200. Testimony elicited during the parties' depositions indicates that a scaffold was constructed by VRH; that VRH thereafter permitted Ebner to construct a hoist upon the scaffold to transport materials from the ground floor to the Admirals Club, and that two gang boxes were, in fact, delivered in this manner; that VRH removed the scaffolding and ordered Ebner to remove the hoist prior to completion of the project; and that after reiterating American's policy that no materials or workers were to be transported by elevator, VRH did not provide any interior winches or hoists for use in the stairwell. In light of this testimony, there are material issues of fact as to whether VRH's actions were a substantial factor in determining the method by which plaintiff removed the gang boxes, and ultimately in causing plaintiff's alleged injuries.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.