Misseritti v. Mark IV Construction Co.

—Order modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff’s decedent was injured when, according to the complaint, "a wall in a building under construction collapsed and fell on him.” Plaintiff moved for partial summary judgment pursuant to Labor Law § 240 (1). That section was adopted to provide protection against risks created by differences in elevation, that is, risks that are "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” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514). The two types of risks are generally referred to as the "falling object” and "falling worker” tests. Plaintiff contends that this case involves a "falling object”. We disagree. Conceptually, the "collapse” of a wall made of cement blocks is indistinguishable, for purposes of Labor Law § 240 (1), from the collapse of an excavation trench (see, Rogers v County of Niagara, 209 AD2d 1034 [decided herewith]; Staples v Town of Amherst, 146 AD2d 292) or the collapse of a wall as it is being lifted by workers (see, Maracle v DiFranco, 197 AD2d 877). In Maracle (supra, at 878), we concluded that there was no liability under Labor Law § 240 (1) because the wall that the injured worker was lifting "was at the same level as the work site” (see also, Smerka v Niagara Mohawk Power Corp., 206 AD2d 891; Lehner v Dormitory Auth., 201 AD2d 948; cf., Oden v Chemung County Indus. Dev. Agency, 183 AD2d 998). Similarly, the concrete block fire wall here was at the same level as the work site; the fact that individual concrete blocks separated from the wall as it collapsed does not entitle plaintiff to the protection of the statute. If the wall had collapsed without breaking into pieces, plaintiff would not be entitled to recover (see, Maracle v DiFranco, supra). Thus, defendant is entitled to summary judgment on the Labor Law § 240 (1) cause of action. The uncontroverted evidence establishes that the general contractor did not direct, control or supervise the manner in which decedent’s employer performed its work. Thus, the court properly granted summary judgment in favor of Mark 933 IV Construction Co. on its third-party complaint against decedent’s employer (see, Paterson v Hennessy, 206 AD2d 919; Damon v Starkweather, 185 AD2d 633; Allman v Ciminelli Constr. Co., 184 AD2d 1022). All concur except Green and Balio, JJ., who dissent in part and vote to affirm in the following Memorandum.