Melber v. 6333 Main Street, Inc.

—Order affirmed with costs. Memorandum: Michael Melber (plaintiff) was employed as a carpenter by third-party defendant ADF Construction Co. in the construction of a medical office building owned by defendant 6333 Main Street, Inc. (owner). Plaintiff wore stilts to install metal, studs in dry wall. While wearing the stilts, plaintiff tripped and fell when one of the stilts caught on a section of electrical conduit that extended vertically from the floor. At the time of the fall, plaintiff was walking down a hallway to retrieve a clamp. Plaintiff and his wife commenced an action for damages allegedly sustained as a result of plaintiff’s injuries. Supreme Court properly granted plaintiffs’ motion against the owner for partial summary judgment on liability under Labor Law § 240 (1). The use of stilts entails "a significant risk inherent in the particular task because of the relative elevation at which the task must be performed” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514). The Industrial Code strictly regulates the use of stilts and requires that scaffolding be provided "for any person performing * * * work [on stilts] who may elect to use such scaffold” (12 NYCRR 23-5.22 [c]). Thus, the Commissioner has determined that stilts are the equivalent of scaffolding. That conclusion is buttressed by the fact that the regulations governing stilts are located in the subpart of the Industrial Code that regulates scaffolding (see, 12 NYCRR sub-part 23-5). Contrary to the position of the dissent, it is not significant that plaintiff was injured while he was retrieving a clamp. There is no requirement that a person be injured while actually performing an activity enumerated in the statute; rather, 996 it is sufficient that the work is "necessary and incidental” to the construction project (Mosher v St. Joseph’s Villa, 184 AD2d 1000, 1002; see, Orr v Christa Constr., 206 AD2d 881; Hagins v State of New York, 159 AD2d 941, affd 81 NY2d 921). All concur except Wesley and Boehm, JJ., who dissent in part and vote to modify in the following Memorandum.