This is an action to recover damages for personal injuries allegedly sustained by a concrete laborer, plaintiff Frank Palermo, on September 21, 2015, while working on a construction project at 7 West 21st Street in Manhattan. Palermo brought this action against defendants 7 West 21 LLC (the owner of the premises) and Cauldwell-Wingate Company LLC (the general contractor), asserting claims sounding in common-law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6). Palermo now moves for partial summary judgment as to liability on his Labor Law § 240 (1) claim. The motion is denied.

"On a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party.'" (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011].) The "movant bears the heavy burden of establishing 'a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.'" (Deleon v New York City Sanitation Dept., 25 NY3d 1102, 1106 [2015], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].) "Once this showing has been made . . . , the burden shifts to the party opposing the motion . . . to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." (Alvarez, 68 NY2d at 324.)

Labor Law § 240 (1), commonly referred to as the Scaffold Law, provides, in part:

"All contractors and owners and their agents . . . 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, slings, 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."

This statute is intended to protect workers from elevation-related risks on the job flowing from the application of the force of gravity. (See Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991].) To prevail on a motion for summary judgment in § 240 (1), the claimant must establish as a matter of law that, at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking. (See Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 662-663 [2014]; Outar v City of New York, 5 NY3d 731, 832 [2005].) And the claimant must further "show that the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute." (Gutman v City of New York, 78 AD3d 886, 887 [2d Dept 2010] [emphasis added].)

In this case, the record reflects that Palermo was injured while he and a coworker were hand-carrying a wooden form weighing 175 to 250 pounds from one area of the construction site to another. The coworker asked Palermo to stop for a brief period so that the coworker could clear the floor ahead of them. Palermo rested his end of the form on top of vertical pipes sticking out of the floor, about 3-4 feet off the ground. The coworker then suddenly moved his end of the form without warning, causing the form to fall off the pipe and strike Palermo's leg and foot.

This court is somewhat skeptical that Palermo's task of helping to hand-carry a 175-250 pound wooden form a few feet off the ground while walking entailed an elevation-related risk within the meaning of Labor Law § 240 (1) as a matter of law. Regardless, Palermo fails to establish as a matter of law that the accident resulted from defendants' failure to provide a statutorily enumerated protective device.

Labor Law § 240 (1) requires the construction, use, or furnishing in appropriate circumstances of "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, [*2]irons, ropes, and other devices" (Labor Law 240(1)). These devices serve to protect "persons in gaining access to or working at sites where elevation poses a risk," or to "lift[] or secur[e] loads and materials employed in the work" to avoid elevation-related risks. (Rocovich v Consolidated Edison Co., 78 NY2d 509, 513-514 [1991].) Here, on the other hand, Palermo says that he and his coworker should have been given a dolly or a-frame cart to move the wooden form that fell on him. These devices would appear to serve the function of making otherwise bulky and heavy objects easier to move, rather than avoiding height-related hazards. And Palermo does not explain why a dolly or an a-frame cart would, as a matter of law, constitute the type of device encompassed by § 240 (1). Rather, he simply states that in some cases a dolly or a-frame cart can be used to move materials. In these circumstances Palermo is not entitled to summary judgment on his § 240 (1) claim. (See Romero v 2200 N. Steel, LLC, 148 AD3d 1066, 1067 [2d Dept 2017] [reversing denial of summary judgment to defendant].)

On reply, Palermo emphasizes that he is not required to prove "which particular safety devices would have prevented his injury."(Noble v. AMCC Corp., 277 AD2d 20, 21 [1st Dept. 2000].) But the issue here is not that Palermo has failed to identify a covered safety device that would have prevented his injury; rather, it is that Palermo fails to show as a matter of law that in the context of his task, the devices he did identify are of the kind envisioned by § 240 (1).^[FN1]

Accordingly, for the foregoing reasons it is hereby

ORDERED that Palermo's motion under CPLR 3212 for partial summary judgment in his favor as to liability on his Labor Law § 240 (1) claim is denied; and it is further

ORDERED that the parties shall confer and shall notify chambers (by email to [email protected]) as to how they intend to proceed on those of plaintiff's claims that are not resolved by this decision and order.