Joseph v. Lakeside Builders & Developers, Inc.

Appellate Division of the Supreme Court of New York

Joseph v. Lakeside Builders & Developers, Inc.

292 A.D.2d 840, 738 N.Y.S.2d 471, 2002 N.Y. App. Div. LEXIS 2742

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 15, 2002

StatusPublished

Cited by3 cases

This text of 292 A.D.2d 840 (Joseph v. Lakeside Builders & Developers, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Joseph v. Lakeside Builders & Developers, Inc., 292 A.D.2d 840, 738 N.Y.S.2d 471, 2002 N.Y. App. Div. LEXIS 2742 (N.Y. Ct. App. 2002).

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Opinion

Appeal from an order of Supreme Court, Monroe County (Frazee, J.), entered December 26, 2000, which, inter alia, denied plaintiff’s motion for partial summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied plaintiff’s motion for partial summary judgment on the Labor Law § 240 (1) claim and granted defendant’s cross motion for partial sum[841]*841mary judgment dismissing that claim. Plaintiff commenced this action seeking damages for injuries that he allegedly sustained when a cinderblock fell and struck his knee. Defendant hired plaintiffs employer as a subcontractor to construct a cinderblock basement for a single-family home. Plaintiffs duties included manually picking up and stacking cinderblocks on a scaffold. According to plaintiff, he reached above his head to place a cinderblock on the scaffold. The cinderblock hit another cinderblock previously stacked on the scaffold and fell, striking plaintiffs knee. “Labor Law § 240 (1) applies where the falling of an object is related to ‘a significant risk inherent in * * * the relative elevation * * * at which materials or loads must be positioned or secured’ ” (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267-268, quoting Rocovich v Consolidated Edison Co., 78 NY2d 509, 514). Although there is conflicting deposition testimony concerning the height of the scaffold and the cinderblocks, it is undisputed that the cinderblocks were always within plaintiffs reach. Thus, any height differential between plaintiff and the cinderblock that fell on him was de minimis (see, Capparelli v Zausmer Frisch Assoc., 96 NY2d 259, 269-270; Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841). Present — Green, J.P., Hayes, Hurlbutt, Kehoe and Burns, JJ.

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Appeal from an order of Supreme Court, Monroe County (Frazee, J.), entered December 26, 2000, which, inter alia, denied plaintiff’s motion for partial summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied plaintiff’s motion for partial summary judgment on the Labor Law § 240 (1) claim and granted defendant’s cross motion for partial sum[841]*841mary judgment dismissing that claim. Plaintiff commenced this action seeking damages for injuries that he allegedly sustained when a cinderblock fell and struck his knee. Defendant hired plaintiffs employer as a subcontractor to construct a cinderblock basement for a single-family home. Plaintiffs duties included manually picking up and stacking cinderblocks on a scaffold. According to plaintiff, he reached above his head to place a cinderblock on the scaffold. The cinderblock hit another cinderblock previously stacked on the scaffold and fell, striking plaintiffs knee. “Labor Law § 240 (1) applies where the falling of an object is related to ‘a significant risk inherent in * * * the relative elevation * * * at which materials or loads must be positioned or secured’ ” (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267-268, quoting Rocovich v Consolidated Edison Co., 78 NY2d 509, 514). Although there is conflicting deposition testimony concerning the height of the scaffold and the cinderblocks, it is undisputed that the cinderblocks were always within plaintiffs reach. Thus, any height differential between plaintiff and the cinderblock that fell on him was de minimis (see, Capparelli v Zausmer Frisch Assoc., 96 NY2d 259, 269-270; Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841). Present — Green, J.P., Hayes, Hurlbutt, Kehoe and Burns, JJ.

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Bluebook (online)

292 A.D.2d 840, 738 N.Y.S.2d 471, 2002 N.Y. App. Div. LEXIS 2742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joseph-v-lakeside-builders-developers-inc-nyappdiv-2002.

Opinion

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