Fulton v. Northland Associates, Inc.

248 A.D.2d 1020, 670 N.Y.S.2d 143, 1998 N.Y. App. Div. LEXIS 3125

Opinion

—Order unanimously reversed on the law without costs and motion denied. Memorandum: Jerry Fulton (plaintiff) was injured while performing masonry work on a construction project at Fort Drum in Watertown. As plaintiff was alighting from a scaffold to the ground, he tripped when he placed his foot on a broken cinder block, which was on the ground. As a result, plaintiff fell and injured his back. Supreme Court erred in granting plaintiffs’ motion for partial summary judgment on liability on the Labor Law § 240 (1) cause of action. Plaintiffs injury was not the result of an elevation-related risk covered by Labor Law § 240 (1) but, rather, was the result of the usual and ordinary dangers at a construction site (see, Kvandal v Westminster Presbyt. Socy., 238 AD2d 889; White v Farash Corp., 224 AD2d 978, 979; see also, Misseritti v Mark W Constr. Co., 86 NY2d 487, 491, rearg denied 87 NY2d 969; Gordon v Eastern Ry. Supply, 82 NY2d 555, 561). The court’s reliance on Sherman v Piotrowski Bldrs. (229 AD2d 959) is misplaced. In that case, plaintiff jumped from the roof of a two-story house to a garage roof because there was no ladder, and his injuries were gravity-related. (Appeal from Order of Supreme Court, Onondaga County, Murphy, J. — Summary Judgment.)

Present — Pine, J. P., Hayes, Callahan, Balio and Boehm, JJ.