O'Brien v. Triburough Bridge & Tunnel Authority

17 A.D.3d 105, 793 N.Y.S.2d 24, 2005 N.Y. App. Div. LEXIS 3440

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 5, 2005
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered April 21, 2004, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant the motion insofar as to dismiss plaintiffs Labor Law § 240 (1), § 200 and common-law negligence claims, and otherwise affirmed, without costs.

Inasmuch as the record shows that plaintiff sustained the complained-of injury when his wrist became stuck against an iron beam, i.e., in an accident in which elevation differentials played no significant role, and not as a result of his subsequent fall from his work position onto safety netting, summary judgment dismissing his Labor Law § 240 (1) claim should have been granted (see Narducci v Manhasset Bay Assoc., 96 NY2d 259, 269 [2001]). Summary judgment should have been granted as well dismissing plaintiffs Labor Law § 200 and common-law negligence claims since the record is devoid of evidence that defendant exercised any direct control over the injury-producing work (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]).

The motion court, however, properly found triable issues as to whether defendant permitted the wooden block upon which plaintiff was working to become slippery in violation of 12 NYCRR 23-1.7 (d) with resultant injury to plaintiff, thus precluding dismissal of the Labor Law § 241 (6) claim. Concur— Buckley, EJ., Tom, Andrias, Friedman and Sullivan, JJ.