Arango v Highpoint Bd. of Mgrs.

[*1] Arango v Highpoint Bd. of Mgrs. 2009 NY Slip Op 50848(U) [23 Misc 3d 1120(A)] Decided on May 1, 2009 Supreme Court, Kings County Schneier, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 1, 2009
Supreme Court, Kings County

Manuel Arango, Plaintiff,

against

The Highpoint Board of Managers and EAST/WEST VENTURE, A PARTNERSHIP, Defendants.



16421/2004



ATTORNEYS FOR PLAINTIFF

TROLMAN, GLASER & LICHTMAN, P.C.

MICHAEL T. ALTMAN, ESQ.

777 THIRD AVENUE, 35TH FLOOR

NEW YORK, NEW YORK 10017

212-750-1200

ATTORNEY FOR DEFENDANT MARGARET G. KLEIN & ASSOCIATES

200 MADISON AVENUE

NEW YORK, NEW YORK 10016

212-683-9700

ATTORNEYS FOR THIRD PARTY DEFENDANT

THE LAW OFFICES OF EDWARD GARFINKEL

12 METROTECH CENTER, 28TH FLOOR

BROOKLYN, NEW YORK 11201

718-250-1100

Martin Schneier, J.

In this work related personal injury action defendant, The Highpoint Condominium s/h/a "The Highpoint Board of Managers" (Highpoint), moves for summary judgment dismissing plaintiff's complaint for failure to prove violations of Labor Law Sections240(1) and 241(6) and common law negligence. Plaintiff, Manuel Arango, opposes only the dismissal of his claim "brought under Labor Law Section 240(1)" and does not oppose the dismissal of his claims of violations of Labor Law Sections 241(6) and common law negligence.

Background

The facts are uncontroverted. On September 15, 2003, plaintiff was an employee of AM & G Waterproofing engaged in painting the north wall of the Highpoint building. He was working on a scaffold situated between the 17th and 20th floors of the building and was injured when his right hand was caught between the motor of the scaffold and the wall of the building.

Discussion

Summary judgment is a drastic remedy that should only be employed when there is no doubt as to the absence of any triable issues of a material fact (Kolivas v Kirch,14 AD3d 493 [2d Dept. 2005]) "Issue finding, rather than issue determination is the courts function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" (Celardo v Bell, 222 AD2d 547 [2d Dept. 1995]).

The party moving for summary judgment has the initial burden of coming forward with admissible evidence that establishes the absence of a material issue of fact (CPLR § 3212[b]; GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965, 968 [1985]). However, once the moving party has satisfied this obligation, the burden shifts; "the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action" (Zuckerman v. City of New York, 49 NY2d 557, 560 [1980]).

Labor Law Section 240(1) provides, in pertinent part, that: "All contractors and owners.....who contract for[*2]

but do not direct or control the work, in the erection, demolition.....of a building or structureshall furnish or erect, or cause to be furnished orerected for the performance of such labor, scaffolding,hoists, stays, ladders, slings, hangers, blocks, pulleys,irons, ropes and other devices which shall be so constructed,placed and operated as to give protection to a person soemployed."

Labor Law § 240 (1) "imposes absolute liability on owners and contractors for any breach of the statutory duty that proximately causes injury" (Abbatiello v Lancaster Studio Associates, 3 NY3d 46, 50 [2004]). The statute imposes this exceptional protection for workers because of the special hazards that arise when the work site itself is either elevated or is positioned below the level where materials or loads are being hoisted or secured (Natale v City of New York, 33 AD3d 772 [2d Dept. 2006]; Narducci v Manhasset Bay Assoc., 96 NY2d 259 [2001]). These special hazards do not encompass any and all work related accidents that may be connected in some tangential way with the effects of gravity. Rather they are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured (Gonzalez v Turner Constr. Co., 29 AD3d 630 [2d Dept. 2006]).

The Appellate Division, Second Department, recently, in Gasques v State of New York (59 AD3d 666 [2d Dept. 2009]), a case identical to this one, discussed Labor Law Section 240(1) liability. In Gasques the Plaintiff "while ascending the Brooklyn tower of the Kosciuszko Bridge on a two-point suspension scaffold, sustained injuries when he stopped the scaffold, and his hand was crushed between the motor control of the scaffold and the steel of the bridge" (id. at 666). The Appellate Division, Second Department in Gasques upheld the

dismissal of Plaintiff's Labor Law Section 240(1) claim, stating that "the injured claimant's injury, while tangentially related to the effects of gravity, was not caused by the limited type of elevation-related hazards encompassed by the statute" (id. at 667).

In the instant case, as in Gasques, the injury was caused by the side to side motion of the scaffold and not by an up or down motion. Thus, the injury was only tangentially related to the effects of gravity, and was not caused by the limited [*3]type of elevation-related hazards encompassed by Labor Law Section 240(1). The defendant has, therefore, made a prima facie showing of entitlement to judgment as a matter of law. In opposition, plaintiff failed to raise a triable issue of fact that his injury arose from an elevation-related risk within the contemplation of this statute.

Conclusion

Based on the foregoing, the motion by the defendant is granted and the complaint is dismissed.

This constitutes the Decision and Order of the Court.

_______________________

J.S.C.