Rzymski v Metropolitan Tower Life Ins. Co.

Rzymski v Metropolitan Tower Life Ins. Co. 2012 NY Slip Op 03099 Decided on April 24, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 24, 2012
Mazzarelli, J.P., Sweeny, Moskowitz, Abdus-Salaam, Manzanet-Daniels, JJ.
7459 104591/07 590892/09

[*1]Wojciech Rzymski, Plaintiff-Respondent,

v

Metropolitan Tower Life Insurance Company, et al., Defendants-Appellants. [And Another Action]




Smith Mazure Director Wilkins Young & Yagerman, P.C.,
New York (Louise M. Cherkis of counsel), for appellants.
Edelman & Edelman, P.C., New York (David M. Schuller of
counsel), for respondent.

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered August 29, 2011, which granted plaintiff's motion for summary judgment as to liability on his cause of action pursuant to Labor Law § 240(1) and denied defendants' cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff, a steam fitter, was installing one end of a steel pipe that weighed approximately 250 pounds, and was 20 feet long and 4 inches wide, into a clevis hanger when the other side of the pipe that had previously been installed, came loose, causing the pipe to strike him in the head and knock him off the ladder on which he was standing. Under these circumstances, the motion court correctly granted plaintiff's motion for partial summary judgment on his cause of action pursuant to Labor Law § 240(1). Plaintiff established his entitlement to judgment as a matter of law by demonstrating that his claims encompass both a falling object and a fall from an elevation due to inadequate safety devices (see e.g. Kovasick v Tishman Constr. Corp., 50 AD3d 287, 288 [2008]). Defendants failed to raise an issue of fact in opposition to the motion.

The motion court also correctly denied defendants' cross motion to dismiss the cause of action pursuant to Labor Law § 241(6), which is predicated on a violation of 12 NYCRR 23-[*2]1.8(c). The record reflects an issue of fact concerning whether safety hats, i.e., hard hats, were available on site.

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 24, 2012

CLERK