Mills v. Tumbleweed Management Co.

270 A.D.2d 121, 704 N.Y.S.2d 571, 2000 N.Y. App. Div. LEXIS 2857

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about July 2, 1999, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff was injured on the roof of defendants’ building while hoisting work materials up to the building’s roof by rope. According to plaintiff, the load of materials he was hoisting became stuck on the way up, violently jerking him forward and when he pulled back on the rope, he injured his back. In this action to recover for that injury under, inter alia, Labor Law § 240 (1) and § 241 (6), the IAS Court correctly denied defendants’ motion for summary judgment insofar as their motion sought dismissal of plaintiffs Labor Law § 240 (1) claim. Plaintiffs statement in his opposing affidavit, that he pulled back on the rope to keep from falling off the roof, raised an issue of fact as to whether his injury was elevation-related and, accordingly, redressable under section 240 (1). If the accident happened in the manner claimed by plaintiff, plaintiff would be entitled to the protection of section 240 (1) since hoisting construction materials from the roof of a building under the circumstances described in plaintiffs affidavit entails elevation-related hazards of the sort section 240 (1) was intended to guard against (see, Rocovich v Consolidated Edison Co., 78 NY2d 509, 512-514).

Moreover, plaintiff adequately alleges that the Industrial Code mandates compliance with concrete specifications applicable to this case and, accordingly, summary judgment dismissing his Labor Law § 241 (6) cause of action was properly denied (see, Mattison v Wilmot, 228 AD2d 991, lv dismissed 89 NY2d 917). Concur — Williams, J. P., Ellerin, Rubin and Saxe, JJ.