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Clarke v. Morgan Contracting Corp.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 19, 2009

ANTHONY CLARKE, ET AL., PLAINTIFFS-RESPONDENTS,
v.
THE MORGAN CONTRACTING CORPORATION, ETC., DEFENDANT-APPELLANT. [AND A THIRD-PARTY ACTION]

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered July 15, 2008, which, insofar as appealed from, granted plaintiffs' motion for summary judgment on the issue of liability pursuant to Labor Law § 240(1), and denied defendant's cross motion for summary judgment dismissing plaintiffs' claim pursuant to Labor Law § 241(6), unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Saxe, Sweeny, Acosta, Freedman, JJ.

22929/06

Plaintiff, who was employed to perform carpentry work on a construction project at SUNY Downstate Medical Center, was injured when two metal stud beams that were being hoisted from the street were dropped from a sidewalk bridge and landed on his face, chest and shoulders. Plaintiffs met their burden of demonstrating that defendant's failure to provide adequate safety devices was a contributing cause of plaintiff's injuries in violation of § 240(1) (see Kielar v Metro. Museum of Art, 55 AD3d 456, 458 [2008]; Greaves v Obayashi Corp., 55 AD3d 409 [2008]), and plaintiff was not, under any view of the evidence, the sole proximate cause of his injuries (see Zuluaga v P.P.C. Constr., LLC, 45 AD3d 479, 480 [2007]; Kyle v City of New York, 268 AD2d 192, 196 [2000], lv denied 97 NY2d 608 [2002]).

The court properly denied defendant's motion for summary judgment on plaintiffs' § 241(6) claim premised on Industrial Code (12 NYCRR) § 23-1.7(a)(1). This rule is sufficiently specific to support a cause of action under § 241(6) (see Murtha v Integral Constr. Corp., 253 AD2d 637, 639 [1998]), and a material question of fact remains as to whether the area where the accident occurred was an area "normally exposed to falling material or objects," and as to whether the sidewalk bridge without safety netting provided appropriate overhead protection to workers in that area.

We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090319

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