Panattoni v. Inducon Park Associates, Inc.

Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: John Panattoni (plaintiff) was injured when he was struck by a section of a sewer pipe that was being lowered by a backhoe into a trench in which he was standing. The pipe was attached to the backhoe by a strap or choke collar, which broke; the pipe fell and struck plaintiff on the leg, knocking him to the ground. Supreme Court granted plaintiffs’ motion for partial summary judgment on the Labor Law § 240 (1) cause of action; this appeal arises as a result of a judgment against defendants following a trial on the issue of damages. The court properly granted plaintiffs’ motion for partial summary judgment on the Labor Law § 240 (1) cause of action. Plaintiff was injured as a result of “being struck by a falling object that was improperly hoisted or inadequately secured” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501; see, Sherman v Babylon Recycling Ctr., 218 AD2d 631, lv dismissed 87 NY2d 895). Defendants’ reliance on Adamczyk v Hillview Estates Dev. Corp. (226 AD2d 1049) is misplaced. There the sewer pipe was being handed down to the plaintiff by a coworker standing above the trench; the pipe slipped from the co-worker’s hand and fell into the trench, and the plaintiff was injured when he caught the pipe and injured his back. That case involved “the usual and ordinary dangers of a construe [824] tion site, and not the extraordinary elevation-related risks envisioned by Labor Law § 240 (1)” (Adamczyk v Hillview Estates Dev. Corp., supra, at 1049). There is no merit to the contention that the accident here was not the result of an object falling from an elevated worksite (see, Covey v Iroquois Gas Transmission Sys., 89 NY2d 952). We agree with defendants that the court erred in failing to reduce the verdict by $20,307.99, the amount paid by a private health insurer for plaintiffs back treatment. Private health insurance benefits are collateral source payments to be deducted from damages awards (see, CPLR 4545 [c]; Niemann v Luca, 168 Misc 2d 1023, 1026-1027). Plaintiffs failed to demonstrate that the health insurance benefits would be covered by Workers’ Compensation insurance and thus would be subject to a lien and not subject to an offset. Moreover, the Workers’ Compensation Board is not bound by the court’s determination that plaintiffs back injuries arose from a worksite accident (see, O’Rourke v Long, 41 NY2d 219, 228). We have reviewed the remaining contentions of defendants and conclude that they are without merit. We therefore modify the judgment by deducting the amount of $20,307.99, plaintiffs private health insurance benefits, and otherwise affirm. (Appeals from Judgment of Supreme Court, Niagara County, Koshian, J. — Summary Judgment.) Present— Denman, P. J., Lawton, Hayes, Balio and Boehm, JJ.