Opinion
102446/05.
Decided February 19, 2008.
Upon the foregoing papers, defendants' motion (No. 1541) for partial summary judgment is denied; plaintiffs' cross motion (No. 3185) for partial summary judgment on their cause of action under Labor Law § 240(1) is granted.
This action was commenced to recover damages for personal injuries allegedly sustained by plaintiff Dean Rae (hereinafter "plaintiff") on September 15, 2004 while employed as a construction worker at a project which involved the addition of an extension to P.S. 44 in Staten Island. It is undisputed that at the time in question a concrete foundation had already been constructed upon which modular units were installed. The "crawlspace" under these units (i.e., the basement area) measured seven or eight feet in height. It is further undisputed that the only means of ingress and egress into the crawlspace area where plaintiff was working was through two square "cuts-outs" (approximately 30 by 24 inches) in the foundation wall. While plaintiff climbed through one of these openings and attempted to lower himself down to the floor, he "lost his grip" on the window cutout and fell. No ladders had been supplied to plaintiff.
In moving to dismiss plaintiffs' Labor Law § 240(1) cause of action, defendants maintain that the injured plaintiff did not sustain a gravity-related injury. More particularly, movants argue that accepting the injured plaintiff's version of the facts, he fell because his feet slipped on a wet pallet that had been placed on the basement floor directly below the window. Thus, defendants insist that plaintiff's accident was not elevation-related and does not fall within the purview of Labor Law § 240(1).
Defendants further maintain that the de minimus height differential in this case did not pose an extraordinary elevation-related risk of the type sought to be regulated by Labor Law § 240(1). In support of this contention it is claimed that given plaintiff's stated height of five feet, eight inches, and his description of the distance between the bottom of the window cutout and the basement floor as being between three and five feet (which was reduced by an additional four inches given the height of the wooden pallet located beneath the window cutout), the Court should take judicial notice that the maximum height from which plaintiff could have fallen as he lowered himself, feet-first, through the window cutout, was one or two feet. Defendants claim that this de minimus height differential does not implicate the statute in question.
Finally, defendants contend that the instant case is analogous to those in which a worker falls into a trench, wherein the courts have uniformly held that the kind of risk to which a worker is thereby exposed does not invoke the protections of Labor Law § 240(1), but is the result of the "ordinary dangers" of a construction site.
Labor Law § 240(1) imposes absolute liability upon contractors and owners who fail to provide workers with specific safety devices deemed necessary to protect them against "such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" ( see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501). The elevation risks covered by this statute "are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted" ( Rocovich v Consolidated Edison Co., 78 NY2d 509, 514). In such circumstances, the failure to provide any safety devices at all constitutes a violation of Labor Law § 240 (1) as a matter of law ( see Zimmer v Chemung County Performing Arts, 65 NY2d 513; Elkins v Robbins Cowan, 237 AD2d 404, 405).
In the instant matter, it is uncontroverted that plaintiff was required to lower his body through a window cutout in the foundation in order to descend into his work area in the basement. In view of the foregoing, it is the opinion of this Court that plaintiff was exposed to an elevation-related risk for which a protective device was required. Clearly, the use of one or more of the safety devices enumerated in Labor Law § 240(1), e.g., a ladder, would have enabled this plaintiff to safely perform the task of descending into the basement, thereby protecting him from the particular gravity-related risk to which he was exposed, and which resulted in his injury ( see Narducci v Manhasset Bay Assoc., 96 NY2d 259). Thus, without question, defendants' failure to provide plaintiff with any safety devices to prevent him from falling was a substantial factor in precipitating his injury ( see Bland v Manocherian, 66 NY2d 452) and, as a matter of law, constituted a violation of their statutory duty ( see Zimmer v Chemung County Performing Arts, 65 NY2d at 523; Labor Law § 240).
Consonant with the foregoing, plaintiffs have established their prima facie entitlement to partial summary judgment on the issue of liability under Labor Law § 240(1) by demonstrating that plaintiff was exposed to an elevation-related risk for which no safety devices were provided, and that such failure resulted in his fall and precipitated his injuries ( see Taeschner v M M Restorations, 295 AD2d 598; Elkins v Robbins Cowan, 237 AD2d at 405). In opposition, defendants have failed to present evidence that their failure to provide safety equipment was not a proximate cause of plaintiff's accident ( see Zimmer v Chemung County Performing Arts, 65 NY2d at 524; Elkins v Robbins Cowan, 237 AD2d at 406; see generally Zuckerman v City of New York, 49 NY2d 557). In this regard, defendants' contention that plaintiff fell because his feet slipped on a wet wooden pallet placed on the basement floor is unavailing. It is plaintiff's uncontroverted deposition testimony that while holding onto the concrete opening of the window cutout, he "lost his grip and . . . went down, landed on the edge of the pallet, and then . . . landed flat on [his] back." On these papers, any other version of the events would constitute pure speculation. Finally, as for defendants' contention that the height differential in this case is de minimus and not encompassed by Labor Law § 240(1), it is noted that "[t]he sufficiency of an elevation differential and fall from a height for purposes of Labor Law § 240(1) liability cannot . . . be reduced to a numerical bright-line test or automatic minimum/maximum quantification" ( Amos v Little Rapids Corp., 301 AD2d 698, 701, app dismissed 1 NY3d 558; see Mann v Meridian Ctr. Assoc. , 17 AD3d 1143, 1145, lv dismissed 5 NY3d 824).
Accordingly, it is
ORDERED, that defendants' motion for partial summary judgment dismissing plaintiffs' claims under Labor Law § 240(1) is denied; and it is further
ORDERED, that plaintiffs' cross motion for partial summary judgment on the issue of liability in their cause of action predicated upon the violation of Labor Law § 240(1) is granted; and it is further
ORDERED, that the Clerk enter judgment in accordance herewith.
The foregoing constitutes the Decision and Order of the Court.