Sahota v. Celaj

[309] Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered April 11, 2003, which, to the extent appealed from, granted plaintiffs motion for partial summary judgment on his Labor Law § 240 (1) claim and denied defendant’s cross motion for summary judgment dismissing the claim, reversed, on the law, without costs, plaintiffs motion for partial summary judgment denied, defendant’s cross motion for summary judgment granted and the Labor Law § 240 (1) claim dismissed. The uncontroverted record evidence shows that plaintiff was injured when, at the direction of his employer, he halted his masonry pointing and sealing work which he was performing from a scaffold, dismounted the scaffold onto an adjacent fire escape platform and tried to descend from there down to street level. As he stood on the fire escape platform attempting to lower the fire escape ladder, its securing mechanism broke, suddenly releasing a metal bolt (and the ladder), which crashed down and struck his left arm, fracturing his radius and ulna. No work was being done from the fire escape nor, during the course of this project, was the fire escape ever used as a scaffold. No work was being done to the fire escape and the fire escape ladder mechanism was not being hoisted or secured at the time of the accident. The safety equipment that plaintiff used in his work, the scaffold and a harness, functioned perfectly and did not contribute to the accident. The instance of the accident was alleged to be the only time plaintiff used the fire escape for any purpose. Narducci v Manhasset Bay Assoc. (96 NY2d 259 [2001]) is the controlling case on the issue of falling objects in the context of Labor Law § 240 (1). In Narducci, the plaintiff was injured when, while working from a ladder to remove a window, an adjacent window pane, which was not being worked on, popped out and struck him. The Court of Appeals found that the statute offered no relief in such circumstances. It dismissed his Labor Law § 240 (1) claim on the grounds that there was no showing that the object struck him due to the absence or failure of a statutory safety device or while being hoisted or secured. As in Narducci, we find that the accident here was not one within the contemplation of Labor Law § 240 (1), but, instead, involved a general hazard of the workplace. The Narducci circumstances and those in the instant case are readily distinguishable from the circumstances in Acosta v Kent [310] Bentley Apts. (298 AD2d 124 [2002]), a case heavily relied on by the motion court and our dissenting colleagues. In Acosta, although the plaintiff was engaged in similar work and was injured by a fire escape ladder crashing down on his arm as he tried to ascend to his work station, his work station was a fire escape platform. This Court found that the building’s fire escape was functioning as a labor safety device, since throughout the duration of the work, plaintiff and the other workers, as instructed by their employer, routinely performed certain parts of their work from the fire escape platforms and used the ladders to move themselves and their work materials between levels of elevation. Indeed, they had to, because the areas near the fire escape were inaccessible from the scaffolding provided. As previously mentioned, the instance of the accident was the only time the plaintiff at bar used the fire escape at issue. For similar reasons, plaintiff’s reliance on De Jara v 44-14 Newtown Rd. Apt. Corp. (307 AD2d 948 [2003]) is misplaced. Also inapposite is the dissent’s reliance on Franklin v Dormitory Auth. of State of N.Y. (291 AD2d 854 [2002]) and Lacey v Turner Constr. Co. (275 AD2d 734 [2000]), and plaintiff’s on Dhillon v Bryant Assoc. (306 AD2d 40 [2003]), cases distinguishable because statutory safety devices provided to and used by the workers malfunctioned, resulting in the complained-of injuries. On the other hand, the Second Department case Monir v 393 Jericho Turnpike (293 AD2d 585 [2002]) comports with the facts of the case at bar and follows the reasoning of Narducci. The Monir court stated (at 587): “Since the plaintiffs injuries did not result from either his falling from the [employer-provided, properly-functioning safety device] or his being struck by a falling object which was being hoisted or secured as part of the work being performed, his injuries did not result from an elevation-related risk as contemplated by Labor Law § 240 (1), and that statute does not apply” (see Narducci v Manhasset Bay Assoc., supra). Concur—Williams, Marlow and Catterson, JJ.