Favreau v. Barnett & Barnett, LLC , 849 N.Y.S.2d 691 ( 2008 )

Carpinello, J.

Appeal from an order of the Supreme Court (McGill, J.), entered January 3, 2007 in Clinton County, which partially denied defendant’s motion for summary judgment dismissing the complaint.

This Labor Law action stems from an accident that plaintiff allegedly had in February 2001 in the course of his employment with a general contractor on a commercial building project. According to plaintiff, on the date of the alleged accident, he was in the process of installing a firewall between defendant’s office building and a newly-constructed addition. While walking backwards up the roof of the existing building carrying one end of a piece of sheetrock (a coworker was carrying the other end), he stepped on ice a few feet below the roof’s peak and fell backwards. He landed right where he fell without falling off the roof or sliding downward in any way. Indeed, according to his testimony, “[his] head and part of [his] shoulders were above the peak” (emphasis added) after he fell. At issue on appeal is that part of an order of Supreme Court denying defendant’s motion for summary judgment dismissing the Labor Law § 240 (1) and § 241 (6) causes of action.

While summary judgment was properly denied with respect to plaintiffs Labor Law § 241 (6) cause of action, his accident was not covered under Labor Law § 240 (1) and defendant was, therefore, entitled to summary judgment on this claim. It is well established that an accident on an elevated work site does not alone establish a Labor Law § 240 (1) cause of action (see e.g. Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 288-289 [2003]; Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d 974, 977 [2003]). Rather, the statute “ ‘was designed to prevent those types of accidents in which [a] 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’ ” (Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d at 978, quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).

Here, plaintiffs alleged injury did not flow from the application of the force of gravity. He was not injured as the result of falling off or sliding down the slope of the roof, or attempting to prevent himself from doing so (see Milligan v Allied Bldrs., Inc., 34 AD3d 1268 [2006]; Grant v Reconstruction Home, 267 AD2d 555 [1999], appeal dismissed 95 NY2d 831 [2000], lv dismissed 95 NY2d 825 [2000]; Dorr v General Elec. Co., 235 AD2d 883 [1997]; compare Striegel v Hillcrest Hgts. Dev. Corp., supra; D'Acunti v New York City School Constr. Auth., 300 AD2d 107 [2002]). Rather, he was injured because he slipped and fell on ice, an accident that was in no way attributable to an elevation differential and could have happened at ground level (see Grant v Reconstruction Home, supra; Dorr v General Elec. Co., supra; White v Sperry Supply & Warehouse, 225 AD2d 130 [1996]). In other words, the hazard of slipping and falling on ice, even on top of a roof, does not entail a “risk[ ] due in some way to relative differences in elevation” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 515 [1991]; see e.g. Cundy v New York State Elec. & Gas Corp., 273 AD2d 743 [2000], lv denied 95 NY2d 766 [2000]; Francis v Aluminum Co. of Am., 240 AD2d 985 [1997]; Dorr v General Elec. Co., supra). Under these circumstances, we find no basis for imposing liability pursuant to Labor Law § 240 (1) and, therefore, this claim should have been dismissed (see Milligan v Allied Bldrs., Inc., supra; Cundy v New York State Elec. & Gas Corp., supra; Grant v Reconstruction Home, supra; Francis v Aluminum Co. of Am., supra; White v Sperry Supply & Warehouse, supra).

As a final matter, defendant’s proof that it was “impossible” for plaintiff to have been performing the claimed task on the day in question was sufficiently refuted by plaintiffs evidence such that a jury must decide this issue.

Cardona, P.J., and Spain, J., concur.