Molloy v Long Is. R.R.

Molloy v Long Is. R.R. 2017 NY Slip Op 03606 Decided on May 4, 2017 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 May 4, 2017
Sweeny, J.P., Gische, Kahn, Gesmer, JJ.
3893 154407/13

[*1]Richard Molloy, et al., Plaintiffs-Appellants,

v

Long Island Railroad, et al., Defendants-Respondents.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellants.

Landman Corsi Ballaine & Ford P.C., New York (William G. Ballaine of counsel), for respondents.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered September 24, 2015, which, to the extent appealed from as limited by the briefs, denied plaintiffs' motion for summary judgment as to liability under Labor Law § 240(1), and granted defendants' cross motion for summary judgment dismissing the Labor Law §§ 240(1) and 200 and common-law negligence claims and the Labor Law § 241(6) claim predicated on violations of Industrial Code (12 NYCRR) §§ 23-1.7(f) and 23-1.30, unanimously affirmed, without costs.

Plaintiff Richard Molloy was injured when he fell from the cab of a locomotive on which he was a brakeman. As a matter of law, alighting from a construction vehicle does not pose an elevation-related risk calling for any of the protective devices listed in Labor Law § 240(1) (Bond v York Hunter Constr., 95 NY2d 883, 884-885 [2000]). The Industrial Code provisions cited as predicates for the Labor Law 241(6) claim have no application to plaintiff's accident. Defendants may not be held liable under Labor Law § 200 or in common-law negligence, because plaintiff's injuries arose out of the means and methods of his work, which defendants demonstrated they did not supervise or control (see Alonzo v Safe Harbors of the Hudson Hous. Dev. Fund. Co., Inc., 104 AD3d 446, 449 [1st Dept 2013]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 4, 2017

CLERK