Wegner v. State Street Bank & Trust Co. of Connecticut National Ass'n

Appellate Division of the Supreme Court of New York

Wegner v. State Street Bank & Trust Co. of Connecticut National Ass'n

298 A.D.2d 211, 748 N.Y.S.2d 150, 2002 N.Y. App. Div. LEXIS 9730

Appellate Division of the Supreme Court of the State of New York·Decided October 15, 2002·Published·Cited by 4 cases

Opinion

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered June 13, 2001, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

[212]*212This action is for personal injury sustained when plaintiff tripped over either a prong or leg of a pallet jack while steadying a cabinet, and twisted his back. The Labor Law § 240 (1) claim was properly dismissed because plaintiffs injury was not the result of an elevation-related risk. As is evident from plaintiffs own testimony, he was not performing work involving a significant physical change to the configuration or composition of the building so as to constitute an alteration (see Joblon v Solow, 91 NY2d 457, 465). The Labor Law § 241 (6) claim was properly dismissed because plaintiff failed to rebut, by submission of an expert affidavit or other proof of industry standards, defendants’ showing that 12 NYCRR 23-1.27 (d), requiring the immediate blocking or cribbing of an object once raised to a desired height by a jack, and 12 NYCRR 23-1.28 (a), requiring safe maintenance of hand-propelled vehicles, have no application to pallet jacks (see Murphy v Broadway 48-49th St. Assoc., 246 AD2d 392; McCormack v Helmsley-Spear, Inc., 233 AD2d 203). Moreover, section 23-1.28 (a) is a general directive that cannot serve as a predicate for liability under Labor Law § 241 (6) (see Maldonado v Townsend Ave. Enters., 294 AD2d 207, 208). We have considered plaintiffs’ other contentions regarding the applicability of other Industrial Code sections to the Labor Law § 241 (6) cause of action and find them to be unavailing. Concur — Nardelli, J.P., Mazzarelli, Sullivan and Rubin, JJ.

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Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered June 13, 2001, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

[212]*212This action is for personal injury sustained when plaintiff tripped over either a prong or leg of a pallet jack while steadying a cabinet, and twisted his back. The Labor Law § 240 (1) claim was properly dismissed because plaintiffs injury was not the result of an elevation-related risk. As is evident from plaintiffs own testimony, he was not performing work involving a significant physical change to the configuration or composition of the building so as to constitute an alteration (see Joblon v Solow, 91 NY2d 457, 465). The Labor Law § 241 (6) claim was properly dismissed because plaintiff failed to rebut, by submission of an expert affidavit or other proof of industry standards, defendants’ showing that 12 NYCRR 23-1.27 (d), requiring the immediate blocking or cribbing of an object once raised to a desired height by a jack, and 12 NYCRR 23-1.28 (a), requiring safe maintenance of hand-propelled vehicles, have no application to pallet jacks (see Murphy v Broadway 48-49th St. Assoc., 246 AD2d 392; McCormack v Helmsley-Spear, Inc., 233 AD2d 203). Moreover, section 23-1.28 (a) is a general directive that cannot serve as a predicate for liability under Labor Law § 241 (6) (see Maldonado v Townsend Ave. Enters., 294 AD2d 207, 208). We have considered plaintiffs’ other contentions regarding the applicability of other Industrial Code sections to the Labor Law § 241 (6) cause of action and find them to be unavailing. Concur — Nardelli, J.P., Mazzarelli, Sullivan and Rubin, JJ.

Wegner v. State Street Bank & Trust Co. of Connecticut National Ass'n, 298 A.D.2d 211, 748 N.Y.S.2d 150, 2002 N.Y. App. Div. LEXIS 9730 (N.Y. Ct. App. 2002).

Pincite

298 A.D.2d 211 (Wegner v. State Street Bank & Trust Co. of Connecticut National Ass'n) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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