Czajkowski v. City of New York

126 A.D.3d 543, 2 N.Y.S.3d 900

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 2015
• Docket: 14524 301224/11
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered October 3, 2013, which granted plaintiffs motion for partial summary judgment on the issue of defendants’ liability pursuant to Labor Law § 240 (1), and denied defendants’ cross motion for summary judgment dismissing plaintiffs complaint, unanimously modified, on the law, to dismiss plaintiffs claims pursuant to Labor Law §§ 200 and 241 (6), and otherwise affirmed, without costs.

Plaintiff, following his supervisors’ instructions, was using a sawzall to remove 10-foot high, 8- to 10-foot wide window frames by removing the bottom half first and then the top half. He was injured when the unsecured top half of the window he was removing fell out of the wall and crushed his hand. Based on the facts in the record, we conclude that the motion court properly granted plaintiff partial summary judgment on the issue of defendant’s Labor Law § 240 (1) liability. The record reflects that plaintiff was not provided any safety device to brace or otherwise support the window while it was being removed in the manner that he was instructed (see e.g. Metus v Ladies Mile Inc., 51 AD3d 537 [1st Dept 2008]).

The court erred, however, in not dismissing plaintiffs Labor Law § 200 and § 241 (6) claims. There is no evidence that de fendants controlled the means and methods of plaintiffs work to support section 200 liability, and the Industrial Code sections alleged by plaintiff in support of section 241 (6) liability are inapplicable to the instant action.

Concur — Sweeny, J.P., Renwick, Saxe, Manzanet-Daniels and Gische, JJ.