Carpio v. Tishman Construction Corp. , 658 N.Y.S.2d 919 ( 1997 )

—Order, Supreme Court, New York County (Diane Lebedeff, J.), entered November 6, 1995, which denied plaintiffs motion for partial summary judgment, and upon a search of the record, granted summary judgment to the non-moving defendants dismissing the Labor Law § 240 (1) claim, reversed, on the law, without costs, the claim reinstated and plaintiffs motion is granted.

Plaintiff was employed by third-party defendant L&L Painting Co., Inc., which had been hired in connection with a construction project at the United States Post Office facilities located at 9th Avenue between 29th and 30th Streets. Defendants Tishman and Crow were the construction manager and general contractor, respectively. On September 24, 1992, plaintiff was given the task of painting the ceiling of the third floor, which he began performing by walking along the concrete floor while extending a paint roller up to the ceiling. As he was looking up at the ceiling while using the roller, plaintiffs foot backed into a hole in the floor, causing his leg to fall three feet below the surface to his groin area. The hole, referred to as a riser or sleeve, was 10 to 14 inches wide, was not covered and was created to permit the extension of piping to the floor below. There was at least one other similar hole on the third floor.

Plaintiff commenced this action, citing numerous violations of statutory provisions and regulations including Labor Law § 240 (1) in his bill of particulars. In June 1995, plaintiff moved for partial summary judgment on the Labor Law § 240 (1) claim, asserting that the defendants had breached their nondelegable duty of furnishing adequate safety devices to protect him from this elevation-related risk. The IAS Court denied the motion and granted summary judgment to defendants, who had not requested it. The court stated that the work being performed by the plaintiff did not involve an elevation-related risk because the worksite was "a floor” and "the work was not elevation-related.” It distinguished those cases where the plaintiff had been injured while working on a roof, which it said "is clearly an elevated work site.”

Labor Law § 240 (1) imposes absolute liability upon owners and contractors who fail to provide or erect safety devices necessary to give proper protection to a worker who sustains injuries proximately caused by that failure (Rocovich v Consolidated Edison Co., 78 NY2d 509, 513; Bland v Manocherian, 66 NY2d 452, 459; Singh v Barrett, 192 AD2d 378, 379). The Court of Appeals has stated that the statute is directed at " 'elevation-related hazards,’ ” and that " 'injuries resulting from other types of hazards are not compensable under [it] even if proximately caused by the absence of * * * [a] required safety device’ ” (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 490, quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500; see also, Groves v Land’s End Hous. Co., 80 NY2d 978, 980). In Rocovich (supra, at 514), the Court of Appeals defined the covered risks as "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 or secured” (emphasis added).

Keeping in mind that section 240 (1) " 'is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed’. (See Quigley v. Thatcher, 207 N. Y. 66, 68.)” (Koenig v Patrick Constr. Corp., 298 NY 313, 319), which is to place the responsibility of safety practices where it belongs—with the owners and contractors (Rocovich v Consolidated Edison Co., supra, at 513), we find that the plaintiff’s work herein subjected him to an elevation-related risk covered by the statute, and that he suffered injury as a result of defendants’ failure to fulfill their statutory duties. Plaintiff, whose attention was focused toward the ceiling at the time he stepped into the uncovered hole, was entitled under the statute to protection "against the known hazards of the occupation” (Koenig v Patrick Constr. Corp., supra, at 319), and this he did not receive. Here, the risk of injury existed because of the "difference between the elevation level of the required work” (the third floor), and "a lower level” (the bottom of the piping shaft), and common sense alone tells us that this accident was gravity-related (Rocovich v Consolidated Edison Co., supra, at 514). Plaintiff’s partial fall through a hole at a construction site can hardly be characterized as only tangentially related to the effects of gravity (cf., Ross v Curtis-Palmer Hydro-Elec. Co., supra, at 501; Limauro v City of N. Y. Dept. of Envtl. Protection, 202 AD2d 170).

The dissent correctly notes that Labor Law § 240 (1) does not apply merely because work is performed at elevated heights, but rather, applies only where the work itself involves risks related to differences in elevation (see, Groves v Land’s End Hous. Co., supra, at 980). However, it misapplies this principle in concluding that no elevation-related risk existed because the plaintiff was working on a "permanent concrete floor,” and that this accident was no different from a situation where the plaintiff tripped on a pothole on the ground floor. Indeed, it is the risk posed by elevation differentials at a construction site, not the permanency of the structure, which is determinative of the statute’s applicability (see, Richardson v Matarese, 206 AD2d 353).

This situation is similar to those where a construction worker was injured by falling through a hole in a roof, which courts have consistently found to be an elevation-related risk within the meaning of Labor Law § 240 (1) (see, Clark v Fox Meadow Bldrs., 214 AD2d 882, 883; Orcutt v American Linen Supply Co., 212 AD2d 979; Flansburg v Merritt Meridian Constr. Corp., 191 AD2d 756; Linney v Consistory of Bellevue Refm. Church, 115 AD2d 209). While roof work may appear more elevation-related because a roof is usually the top portion of a structure and is unenclosed, in fact, the risks associated with working on a roof are no greater than those of working on a third floor with large holes in it. This plaintiff did not trip on a pothole, as the dissents suggests, but fell into a hole with a three-foot elevation differential, and such a risk would fall within the statute even if it existed at ground level (see, DeLong v State St. Assocs., 211 AD2d 891; Nichols v Deer Run Investors, 204 AD2d 929).

There is no triable issue of fact and, accordingly, plaintiff’s motion for partial summary judgment on his Labor Law § 240 (1) claim is granted. Concur—Ellerin, J. P., Nardelli and Mazzarelli, JJ.