McKenna v. Huber, Hunt & Nichols, Inc.

284 A.D.2d 901, 725 N.Y.S.2d 919, 2001 N.Y. App. Div. LEXIS 5774

Opinions

—Order modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff commenced this action to recover for injuries sustained in a fall at a construction site. Plaintiff sued the general contractor, alleging common-law negligence and the violation of various provisions of the Labor Law. Plaintiff moved for partial summary judgment on liability on the claim under Labor Law § 240 (1), and defendant cross-moved for summary judgment dismissing that claim. Plaintiff appeals and defendant cross-appeals from an order denying that motion and cross motion. We conclude that Supreme Court erred in denying defendant’s cross motion, and we modify the order accordingly. Labor Law § 240 (1) does not apply where, as here, plaintiffs fall involved the “usual and ordinary dangers of a construction site, and not the extraordinary elevation risks” that section 240 (1) was designed to protect against (Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841, 843; see, Nieves v Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914, 915-916).

All concur except Green, J., who dissents in part and votes to affirm in the following Memorandum.