McKenna v. Huber, Hunt & Nichols, Inc.

—Order modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff commenced this action to recover for injuries sustained in a fall at a construction site. Plaintiff sued the general contractor, alleging common-law negligence and the violation of various provisions of the Labor Law. Plaintiff moved for partial summary judgment on liability on the claim under Labor Law § 240 (1), and defendant cross-moved for summary judgment dismissing that claim. Plaintiff appeals and defendant cross902 appeals from an order denying that motion and cross motion. We conclude that Supreme Court erred in denying defendant’s cross motion, and we modify the order accordingly. Labor Law § 240 (1) does not apply where, as here, plaintiffs fall involved the “usual and ordinary dangers of a construction site, and not the extraordinary elevation risks” that section 240 (1) was designed to protect against (Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841, 843; see, Nieves v Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914, 915-916). All concur except Green, J., who dissents in part and votes to affirm in the following Memorandum.