RELIEF REQUESTED

The plaintiff moves for an order pursuant to CPLR §3212 for partial summary judgment on the issue of liability pursuant to defendant's violation of Labor Law §240(1), setting the matter down for trial on damages only. The defendant submits opposition. The plaintiff submits a reply affirmation.

The plaintiff initiated this action for personal injuries sustained on May 20, 2008 at a construction site involving the installation and/or erection of a diesel fuel tank at the Manhasset Valley Pumping Station of the Great Neck Water Pollution Control District.

Upon the record herein it is undisputed that a 2,500 pound diesel tank, hoisted and carried by a forklift using two chains, elevated approximately six feet from the ground, was teeter-tottering when plaintiff was instructed to pull down on the front of the tank when something popped and the front of the tank fell smashing plaintiff's hand between the tank and the top of the bollard. It is also undisputed that there were no other safety devices available to hoist the tank other than the two [*2]chains attached to the forklift which did not wrap around the bottom or sides of the tank, and there were no other safety devices available to control the movement of the tank during hoisting and carrying.

The plaintiff avers that at the time of the accident, during the installation of the large industrial-sized gas tank, the gas tank fell from a height onto his left hand while being hoisted by a forklift severing the tips of his middle and ring finger on his left hand.

The plaintiff submits that while he was engaged in an enumerated activity under Labor Law §240(1), a 2,500-pound tank suspended six feet above the ground fell while being hoisted in the absence or inadequacy of a safety device partially amputating plaintiff's fingers. Plaintiff argues that he is entitled to the absolute liability provision under the statute as the falling object occurred as a result of the failure to use necessary and adequate hoisting or security devices. (Narducci v. Manhasset Bay Association, 90 NY2d 259; Mendoza v. Bayridge Parkway Associates, LLC, 38 AD3d 505).

The defendant, in opposition, essentially argues that the accident is not an elevation-related risk subject to the safeguards prescribed by Labor Law §240(1), and the accident did not result from a "falling object", one of the two types of scenarios that §240(1) was enacted to address, the other being a "falling worker". The defendant submits that at the time of the accident, the plaintiff was standing on a concrete slab, on ground level, pulled down on the tank, whereby the tank moved 1 - 1.5 feet pinching two of plaintiff's fingers between the tank and metal bollard. As plaintiff was standing on ground level and was in position to reach and pull the tank toward him, the defendant submits that the plaintiff's activities did not involve the extraordinary elevation-related risks envisioned by Labor Law §240(1).

Section 240(1) of the Labor Law requires that owners and general contractors "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, swings, hangers, blocks, pulleys, braces, irons, ropes and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." Violation of Labor Law §240(1) mandates the imposition of liability regardless of negligence and

is deemed to create a statutory cause of action unrelated to questions of negligence. "Labor Law §240 imposes absolute liability on owners, contractors and agents for their failure to provide workers with safety devices that properly protect against elevation-related special hazards." (Striegel v. Hillcrest Heights Development Corporation, 100 NY2d 974). "The statute is to be interpreted liberally to accomplish its purpose." (Id, citing Rocovich v. Consolidated Edison Co., 78 NY2d 509). Labor Law §240(1) applies to both "falling worker" and "falling object" cases. (Id.)

While Labor Law §240(1) is to be construed liberally for the accomplishment of the purpose [*3]for which it was from, this principle operates to impose absolute liability only after a violation of the statute has been established. (Narducci v. Manhasset Bay Associates, 96 NY2d 259). "Even [a] violation of Labor Law §240 cannot establish liability if the statute is intended to protect against a particular hazzard, and a hazzard of a different kind is the occasion of the injury." (Id., supra, citing, Rocovich v. Consolidated Edison Co., supra).

The Court of Appeals in Narducci, supra, cited Rocovich v. Consolidated Edison Co., supra, in stating that with respect to "falling objects," Labor Law §240(1) applies where the falling object is related to "a significant risk inherent in ... the relative elevation ... at which materials or loads must be positioned or secured." Thus, for §240 to apply, a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell while being hoisted or secured because of the absence or inadequacy of a safety device of the kind enumerated in the statute. (Narducci, supra, citing, Pope v. Supreme -K.R.W. Constr. Corp., 261 AD2d 523; Baker v. Barron's Educ. Serv. Corp., 248 AD2d 655).

Here, the plaintiff has made a prima facie showing that the object, a tank, fell while being hoisted or secured because of the absence or inadequacy of a safety device of the kind enumerated in the statute. Absolute liability arises for falling object under Labor Law §240(1) when there is a failure to use necessary and adequate hoisting or securing devices, (Narducci, supra), and the instant general hazard at bar is one contemplated to be subject to Labor Law §240(1).

More recently, the Court of Appeals has held that the applicability of the statute in a falling object case does not depend upon whether the object has hit the worker, but rather, whether the harm flows directly from the application of the force of gravity to the object. (Runner v. NY Stock Exchange, Inc., 13 NY3d 599). In Runner, supra, the plaintiff was directed to move a large reel of wire, weighing some 800 pounds, down a set of about four stairs, whereby the reel was wrapped by a rope, which proved ineffective to regulate the rate of the reel's descent, and the plaintiff was drawn horizontally into the bar, injuring his hands as they jammed against it. In Runner, supra, the Court found that "the harm to the plaintiff was the direct consequence of the application of the force of gravity to the object". (Id.) Additionally, the Court found that the elevation differential involved cannot be viewed as de minimus, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent". (Id.)

Here, the harm to the plaintiff was a result of the direct consequence of the force of gravity to the object, a 2,500-pound tank. While the defendant argues that the elevation of approximately 1 - 1.5 feet is somewhat de minimis as the plaintiff was able to reach the tank at ground level, the elevation cannot be viewed as de minimis given its weight and the amountof force it was capable of generating. There is no dispute herein that plaintiff's injury flowed directly from the force of gravity from the tank, improperly hoisted, and that the tank was part of a load that required securing. [*4]The plaintiff has established that the absence of adequate safety devices caused the tank to unload from the hoist and that such failure was the proximate cause of his injuries. The defendant, in opposition, has failed to raise a triable issue of fact to warrant the denial of this summary judgment motion, and therefore, there is no basis upon which to deny plaintiff's entitlement to recover under Labor Law §240(1).

Plaintiff's motion for partial summary judgment on the issue of liability under Labor Law §240(1) is granted.

E N T E R :

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J.S.C.

Dated: September 9, 2010