Supreme Court of New York, Appellate Division, First Department
The Perecman Firm, P.L.L.C., New York (David H. Perecman of counsel), for appellant.
Lewis Johs Avallone Aviles, LLP, Melville (Michael G. Kruzynski of counsel), for respondent.
Gonzalez, P.J., Tom, Sweeny, Freedman, Abdus-Salaam, JJ.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered February 24, 2009, which denied plaintiff's motion for summary judgment on the issue of liability under Labor Law §§ 240(1) and 241(6) and granted so much of defendant's cross motion for summary judgment as sought to dismiss the section 240(1) claim and the section 241(6) claim based on Industrial Code (12 NYCRR) §§ 23-3.3(b)(2) and (h), unanimously modified, on the law, to deny so much of defendant's motion as sought to dismiss the section 241(6) claim based on 12 NYCRR § 23-3.3(b)(2), and otherwise affirmed, without costs.
Plaintiff was injured at a demolition site when a portion of an exterior wall collapsed onto him as he was clearing debris on the landing of a staircase between the seventh and eighth stories. The floor of the eighth story had been largely removed with only some steel floor beams and a piece of the concrete floor remaining. The accident occurred while a coworker, located about 30 feet from plaintiff on the seventh floor, was using a long torch to cut the floor beams of the eighth floor above him. Plaintiff heard someone yell, "Wall is collapsing, wall is collapsing." A portion of the exterior wall of the building fell down onto him, knocking him down the stairs. Describing what he saw, plaintiff stated that "the wall was going up, and then it went down and collapsed."
The cause of the wall's collapse is not discernable from the record. Plaintiff was not working at an elevation so as to require a protective device enumerated in Labor Law § 240(1) (cf. Greaves v Obayashi Corp., 55 AD3D 409 , lv dismissed 12 N.Y.3d 794 ), and the collapse of a wall is not "the type of elevation-related accident that section 240(1) is intended to guard against" (Misseritti v Mark IV Constr. Co., 86 N.Y.2d 487, 491 ). Plaintiff's contention that the collapse was precipitated by "vibrations caused by the improper demolition of floor beams" is not supported by any evidentiary submission (see generally Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 514 ), and injury resulting from being struck by an object loosened by vibration is merely a hazard incidental to the workplace (see generally Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259 ).
The record contains insufficient evidence from which to infer that plaintiff's injuries were caused by defendant's alleged violations of either 12 NYCRR § 23-3.3(b)(1), which provides, inter alia, that "all demolition work above each tier of floor beams shall be completed before any demolition work is performed on the supports of such floor beams," or 12 NYCRR § 23-3.3(h), which provides that "[e]very structural member which is being dismembered... shall be chained or lashed in place to prevent its uncontrolled swinging or dropping."
However, we find that a factual issue is presented by plaintiff's section 241(6) claim predicated on a violation of 12 NYCRR § 23-3.3(b)(2), which provides that "[m]asonry shall not be... permitted to fall in such masses as to endanger the structural stability of any floor or structural support which such masonry may strike in falling." It is unclear whether the masonry of ...