Sierzputowski v. City of New York

12 Citing cases

  1. Perillo v. Lehigh Construction Group, Inc.

    17 A.D.3d 1136 (N.Y. App. Div. 2005)   Cited 24 times
    Holding "section 23-1.7 is inapplicable because plaintiff was required to work or pass in or through the area of the partially demolished wall"

    Further, "[a] plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute" ( id. at 268 [emphasis deleted]). Here, the remains of the partially demolished partition wall were not "materials or loads" that were being "hoisted or secured," and thus Labor Law ยง 240 (1) does not apply ( see Narducci, 96 NY2d at 267-268; Bennett v. SDS Holdings, 309 AD2d 1212, 1213; Matter of Fischer v. State of New York, 291 AD2d 815, 815-816; see also Sierzputowski v. City of New York, 14 AD3d 606, 607; Sparkes v. Berger, 11 AD3d 601, 602). Turning to the Labor Law ยง 241 (6) claim, we conclude that the court properly denied that part of defendant's motion that sought summary judgment dismissing that claim insofar as it is predicated on the alleged violation of 12 NYCRR 23-3.3 (b) (3) and (c).

  2. Mendez v. Vardaris Tech, Inc.

    2019 N.Y. Slip Op. 4932 (N.Y. App. Div. 2019)   Cited 17 times

    Moreover, under the circumstances presented, the defendant failed to demonstrate, prima facie, that these regulations were inapplicable to the facts of this case, that the regulations were applicable but not violated, or that the alleged violation of these regulations was not a proximate cause of the accident (see Simmons v City of New York, 165 AD3d 725, 729). In this regard, the defendant failed to establish, prima facie, that the hazard which allegedly caused the accident arose from the actual performance of the work, and not structural instability caused by the progress of the demolition (see Sierzputowski v City of New York, 14 AD3d 606, 607; Bald v Westfield Academy & Cent. School, 298 AD2d 881, 882; cf. Vega v Renaissance 632 Broadway, LLC, 103 AD3d 883, 885; Garcia v 225 E. 57th St. Owners, Inc., 96 AD3d 88, 92-93; Campoverde v Bruckner Plaza Assoc., L.P., 50 AD3d 836, 837). Accordingly, the Supreme Court should have denied that branch of the defendant's motion which was for summary judgment dismissing the cause of action to recover damages for a violation of Labor Law ยง 241(6), regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

  3. Mendez v. Jackson Dev. Grp., Ltd.

    99 A.D.3d 677 (N.Y. App. Div. 2012)   Cited 34 times   1 Legal Analyses

    The appellants established, prima facie, their entitlement to judgment as a matter of law dismissing the cause of action to recover damages pursuant to Labor Law ยง 240(1). In this regard the evidence submitted by the appellants showed โ€œthe absence of a causal nexus between the worker's injury and a lack or failure of a device prescribed by section 240(1)โ€ ( Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d at 9, 935 N.Y.S.2d 551, 959 N.E.2d 488, citing Misseritti v. Mark IV Constr. Co., 86 N.Y.2d at 490โ€“491, 634 N.Y.S.2d 35, 657 N.E.2d 1318;see Narducci v. Manhasset Bay Assoc., 96 N.Y.2d at 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085;Novak v. Del Savio, 64 A.D.3d 636, 883 N.Y.S.2d 558;Marin v. APโ€“Amsterdam 1661 Park LLC, 60 A.D.3d 824, 825, 875 N.Y.S.2d 242;Atkinson v. State of New York, 20 A.D.3d 739, 740, 798 N.Y.S.2d 230;Sierzputowski v. City of New York, 14 A.D.3d 606, 607, 789 N.Y.S.2d 214;Sparkes v. Berger, 11 A.D.3d 601, 602, 783 N.Y.S.2d 390). In opposition to that branch of the appellants' motion, the plaintiff failed to raise a triable issue of fact.

  4. Novak v. Del Savio

    64 A.D.3d 636 (N.Y. App. Div. 2009)   Cited 48 times
    In Novak v Del Savio (64 AD3d 636 [2d Dept 2009]), the Court held that a pipe that fell, injuring a worker, did not give rise to a claim under Labor Law ยง 240 (1) because the pipe did not need to be secured for the purpose of affixing it to the ceiling.

    Here, the pipe which fell was not in the process of being hoisted or secured, and did not require securing for the purpose of being affixed to the ceiling. Accordingly, the injured Plaintiff's accident did not result from the special hazards associated with gravity-related accidents covered by Labor Law ยง 240 (1), and does not fall within the scope of that statute ( see Narducci v Manhasset Bay Assoc., 96 NY2d at 268; Marin v AP-Amsterdam 1661 Park LLC, 60 AD3d 824, 825; Atkinson v State of New York, 20 AD3d 739, 740; Sierzputowski v City of New York, 14 AD3d 606, 607; Sparkes v Berger, 11 AD3d 601, 602; Fegundes v New York Tel. Co., 285 AD2d 526, 527). Accordingly, the injured Plaintiff's accident does not fall within the scope of Labor Law ยง 240 (1).

  5. Francis v. Foremost

    47 A.D.3d 672 (N.Y. App. Div. 2008)   Cited 11 times

    Rather, liability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" ( Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267; see Nieves v Five Boro A.C. Refrig. Corp., 93 NY2d 914, 916; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494). In other words, "[a] plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute" ( Narducci v Manhasset Bay Assoc., 96 NY2d at 268; see Keaney v City of New York, 24 AD3d 615, 617; Turczynski v City of New York, 17 AD3d 450; Sierzputowski v City of New York, 14 AD3d 606, 607).

  6. Mentesana v. Janowitz

    44 A.D.3d 721 (N.Y. App. Div. 2007)   Cited 12 times

    In order for Labor Law ยง 240 (1) to apply, the "plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute" ( Sierzputowski v City of New York, 14 AD3d 606, 607, quoting Narducci v Manhasset Bay Assoc, 96 NY2d 259, 268). "Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law ยง 240 (1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" ( Narducci v Manhasset Bay Assoc, 96 NY2d at 267; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501). Here, triable issues of fact preclude summary judgment dismissing the plaintiffs Labor Law ยง 240 (1) cause of action.

  7. Sierra v. Roc-Fifth Ave. Assocs.

    2022 N.Y. Slip Op. 34020 (N.Y. Sup. Ct. 2022)

    Here, plaintiff has failed to eliminate a triable issue of fact as to whether the specific hazard (i.e., the partial fall and the resulting swinging out of the light fixture which, in turn, struck plaintiff in the back) arose from the structural instability caused by the progress of the demolition, rather than from Eric's (i.e., plaintiff's coworker) actual performance of the demolition work itself (see Flores v Crescent Beach Club, LLC, 208 A.D.3d 560, 562 [2d Dept 2022]; Gomez v 670 Merrick Rd. Realty Corp., 189 A.D.3d 1187, 1191 [2d Dept 2020]; Vega v Renaissance 632 Broadway, LLC, 103 A.D.3d 883, 885 [2d Dept 2013]; Campoverde v Bruckner Plaza Assoc., L.P., 50 A.D.3d 836, 837 [2d Dept 2008]; cf. Mendez v Vardaris Tech, Inc., 173 A.D.3d 1004, 1005-1006 [2d Dept 2019]; Sierzputowski v City of New York, 14 A.D.3d 606, 607 [2d Dept 2005]; Salinas v Barney Skanska Const. Co., 2 A.D.3d 619, 622-623 [2d Dept 2003]).

  8. Coward v. Sands Brook, LLC

    2021 N.Y. Slip Op. 30362 (N.Y. Sup. Ct. 2021)   Cited 1 times

    Plaintiff has failed to meet that burden here, in that the testimony of plaintiff and Ford, his coworker, demonstrates that the area where plaintiff was working was an area that was not one that was normally exposed to falling objects for purposes of 12 NYCRR 23-1.7 (a) (1) (Crichigno v Pacific Park 550 Vanderbilt, LLC, 186 AD3d 664, 665 [2d Dept 2020]; Moncayo v Curtis Partition Corp., 106 AD3d 963, 965 [2d Dept 2013]). With respect to 12 NYCRR 23-3.3 (b) (3), the record may show the existence of issues of fact as to whether the hazard that allegedly caused the accident arose from the actual performance of the work as opposed to structural instability caused by the progress of the demolition (see Mendez v Vardaris Tech, Inc., 173 AD3d 1004, 1005-1006 [2d Dept 2019]; Sierzputowski v City of New York, 14 AD3d 606, 607 [2d Dept 2005]; cf. Vega v Renaissance 632 Broadway, LLC, 103 AD3d 883, 885 [2d Dept 2013]). Nevertheless, as nothing in the language of section 23-3.3 (b) (3) suggests that a securing device under that section would be required if there was no foreseeable need for such securing.

  9. Willis v. 171 N. 10th Partners LLC

    2020 N.Y. Slip Op. 33456 (N.Y. Sup. Ct. 2020)

    "In other words, Labor Law ยง 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Ross, 81 NY2d at 501 [emphasis in original]). "A plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Francis v Foremost Contr. Corp., 47 AD3d 672, 674 [2d Dept 2008], quoting Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001] [emphasis in original]; see Keaney v City of New York, 24 AD3d 615, 617 [2005]; Turczynski v City of New York, 17 AD3d 450 [2005]; Sierzputowski v City of New York, 14 AD3d 606, 607 [2005]).

  10. Carranza v. JCL Homes, Inc.

    65 Misc. 3d 1220 (N.Y. Sup. Ct. 2019)

    Therefore, the sole remaining path for Defendants' summary judgment application is whether the alleged violation of these regulation was the sole proximate cause of the accident (seeSimmons v. City of New York , 165 AD3d 725, 729 [2d Dept 2018] ). Defendants failed to establish, prima facie, that the hazard which allegedly caused the accident arose from the actual performance of the work and not the structural instability caused by the progress of the demolition (seeSierzputowski v. City of New York , 14 AD3d 606, 607 [2d Dept 2005] ; Bald v. Westfield Academy & Cent. School , 298 AD2d 881, 882 [4th Dept 2002] ). In Ortega v. Everest Realty LLC (84 AD3d 542 [1st Dept 2011] ), the plaintiff was injured when the wall of an aluminum shed fell on him as he was sawing through it.