Bennion v. Goodyear Tire & Rubber Co.

229 A.D.2d 1003, 645 N.Y.S.2d 195, 1996 N.Y. App. Div. LEXIS 9059

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1996
• Status: Published

Opinions

—Order affirmed without costs. Memorandum: Plaintiff, an employee of third-party defendant, Expert Refrigeration Company, Inc., sustained injuries while performing duct work in a warehouse building owned by defendant, Goodyear Tire & Rubber Company (Goodyear). The ducts ran across the tops of rafters, which were located approximately two to three feet above a drop ceiling. Plaintiff lost his balance and fell three to four feet from a rafter upon which he was standing in order to install a collar on one of the ducts. His right foot went through a ceiling panel and he landed straddling the rafter.

Supreme Court properly granted plaintiff’s motion for partial summary judgment on the Labor Law § 240 (1) cause of action and denied that part of the cross motion of Goodyear for summary judgment dismissing that cause of action. The court properly determined that Labor Law § 240 (1) applies because plaintiff was injured when he fell from an elevated work surface and was not furnished with one or more of the enumerated devices "so constructed, placed and operated as to give proper protection” (Labor Law § 240 [1]; see, Rocovich v Consolidated Edison Co., 78 NY2d 509; Brown v Niagara Mohawk Power Corp., 188 AD2d 1014).

The court properly granted that part of the cross motion of Goodyear for summary judgment dismissing the Labor Law § 241 (6) cause of action. The Industrial Code regulations alleged to have been violated are inapplicable; plaintiff was not using a life net at the time he fell (12 NYCRR 23-1.17), he was not engaged in the construction of a skeleton steel building (12 NYCRR 23-2.4), nor was he using a scaffold (12 NYCRR part 23-5). Further, plaintiff’s accident did not involve a fall into a hazardous opening (12 NYCRR 23-1.7 [b] [1]); a faulty safety belt or lack of a safety belt (12 NYCRR 23-1.16 [b], [c]); the collapse of a platform (12 NYCRR 23-1.22 [c]); insufficient lighting (12 NYCRR 23-1.30); or a fall from a roof (12 NYCRR 23-1.24).

All concur except Doerr and Boehm, JJ., who dissent in part and vote to modify in the following Memorandum.