Dankulich v. Felchar Manufacturing Corp.

Yesawich Jr., J. Appeal from an order of the Supreme Court (Coutant, J.), entered August 13, 1996 in Broome County, which, inter alia, granted defendant’s cross motion for partial summary judgment dismissing plaintiffs’ Labor Law § 240 (1) cause of action. Plaintiff Michael J. Dankulich (hereinafter plaintiff), an air conditioning technician employed by third-party defendant Accu Aire Comfort Systems Corporation (hereinafter Accu Aire), was injured when he jumped approximately seven feet from the platform of a motorized lift. As plaintiff was piloting the lift — which he had been using to place air conditioning equipment on the roof of one of defendant’s buildings — up a ramp toward his next work location, the lift suddenly lost power and rolled backward down the ramp. Discovering that he had no means of steering or stopping the runaway lift, and aware that it was inexorably approaching a steep embankment leading to a road approximately 100 feet below, plaintiff leaped from the lift, allegedly sustaining personal injuries. The lift ultimately came to a stop when it struck a tree. Plaintiff and his wife, derivatively, commenced this action charging defendant with, inter alia, breach of the absolute duty imposed by Labor Law § 240 (1), and defendant in turn brought third-party claims against Accu Aire, the lift manufacturer and others. When plaintiffs applied for summary judgment on their Labor Law § 240 (1) cause of action, defendant cross-moved for summary relief and Accu Aire sought dismissal of the third-party complaint. Supreme Court denied plaintiffs’ motion, as well as that of Accu Aire, but granted defendant’s cross motion. This appeal by plaintiff ensued. The activity in which plaintiff was engaged when the lift malfunctioned, namely, moving necessary equipment from one worksite to another, was plainly incidental to and an integral part of the work he was performing on defendant’s buildings (see, Covey v Iroquois Gas Transmission Sys., 218 AD2d 197, 198-199, affd 89 NY2d 952; Orr v Christa Constr., 206 AD2d 881; Brogan v International Bus. Machs. Corp., 157 AD2d 76, 79); and that activity, the installation of air conditioning equipment, was an “alteration” within the meaning of the statute (see, Perez v New York City Indus. Dev. Agency, 223 AD2d 628, 629). [661] Further, location of the driving controls on the lift required that plaintiff ride on the lift platform, approximately seven feet above the ground, while moving the apparatus, and thus that he be exposed to the gravity-related hazard of falling (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501; cf., Pritchard v Murray Walter, Inc., 157 AD2d 1012, 1013). When the lift malfunctioned, losing power, steering and brakes, and began to roll uncontrollably down an incline, it no longer served its “ ‘core objective’ ” of preventing plaintiff from falling from his elevated perch (Gordon v Eastern Ry. Supply, 82 NY2d 555, 561); indeed, it was precisely because of this inadequacy that plaintiff sustained the injuries he apparently did. In our view, the peril to which plaintiff was exposed is not of a type ordinarily encountered at a construction site (cf., Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491), but is more akin to the danger posed by a scaffold that is improperly constructed or placed, and as a result tilts or begins to roll from the worksite, causing a worker to fall therefrom (cf., Ferrara v Bronx House, 163 Misc 2d 908, 914-915; compare, Borowicz v International Paper Co., 245 AD2d 682). Notably, the lift platform, which was not equipped with a seat and obviously was not intended to be “driven” any significant distance, had, in these respects, more in common with a wheeled scaffold or ladder than a truck or bulldozer. Moreover, the risk of falling from this device — whether it is stationary or in motion — is manifestly greater than that arising from the operation of a typical vehicle or piece of construction equipment. Nor are we persuaded that plaintiff is barred from recovering purely because, when confronted with the dangerous predicament that the lift was quickly drawing near the embankment, he opted to jump rather than risk what he perceived to be more serious consequences (see, Sherman v Piotrowski Bldrs., 229 AD2d 959, 959-960; Camillo v Olympia & York Props. Co., 136 Misc 2d 315, 318-319; cf., Gordon v Eastern Ry. Supply, supra, at 562). Peters and Spain, JJ., concur.