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Antoni Wilinski, et al v. 334 East 92nd Housing Development Fund Corp.

October 25, 2011


The opinion of the court was delivered by: Ciparick, J.:

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

Some New York courts have interpreted our decision in Misseritti v Mark IV Constr. Co. (86 NY2d 487 [1995]) to preclude recovery under Labor Law § 240 (1) where a worker sustains an injury caused by a falling object whose base stands at the same level as the worker. We reject that interpretation and hold that such a circumstance does not categorically bar the worker from recovery under section 240 (1). However, in this case, an issue of fact exists as to whether the worker's injury resulted from the lack of a statutorily prescribed protective device.


On September 28, 2008, at approximately 8:30 A.M.,

plaintiff Antoni Wilinski*fn1 and other workers were demolishing brick walls at a vacant warehouse located on premises owned by defendant 334 East 92nd Housing Development Fund Corp.*fn2 Previous demolition of the ceiling and floor above had left two metal, vertical plumbing pipes unsecured. The pipes were each four inches in diameter and rose out of the floor on which plaintiff was working to a height of approximately 10 feet.*fn3

The pipes were to be left standing until their eventual removal. Earlier that morning, plaintiff voiced concerns to his supervisor that leaving the pipes standing during demolition of the surrounding walls could be dangerous. Nevertheless, no safety measures were taken to secure the pipes. Shortly thereafter, debris from a nearby wall that was being demolished hit the pipes, causing them to topple over. The pipes fell approximately four feet and landed on plaintiff, who is 5' 6" tall. The first pipe knocked plaintiff's hard hat off from his head, then struck his right shoulder and arm, cutting his elbow. The second pipe struck plaintiff's uncovered head, cutting it and causing a concussion. Plaintiff suffered serious and lasting injuries to his shoulder, arm and spine, as well as neuropsychological injuries.

Plaintiff commenced suit alleging violations of Labor Law § 240 (1) and Labor Law § 241 (6), the latter pursuant to 12 NYCRR 23-3.3 (b) (3) and (c). Plaintiff moved for summary judgment on his section 240 (1) claim and defendants cross-moved for summary judgment seeking dismissal of plaintiff's claims. Supreme Court granted plaintiff's motion for summary judgment and denied defendants' motion in its entirety. The court held that plaintiff suffered a gravity-related injury and had established entitlement to judgment as a matter of law by demonstrating that the absence of a statutorily enumerated safety device proximately caused his injury. The court also held that defendants were subject to duties under 12 NYCRR 23-3.3 (b) (3) and (c), which provided a sufficient predicate for liability under Labor Law § 241 (6).

The Appellate Division modified the order of Supreme Court by denying plaintiff's motion for summary judgment and by partially granting defendants' summary judgment motion to the extent of dismissing plaintiff's section 240 (1) claim (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 71 AD3d 538, 539 [1st Dept 2010]). Relying on our decision in Misseritti, the court stated that the accident was "not the type of elevation-related accident that [the statute] is intended to guard against . . . Since both the pipes and plaintiff were at the same level at the time of the collapse the incident was not sufficiently attributable to elevation differentials to warrant imposition of liability" (id. [internal quotation marks and citation omitted]). The court otherwise affirmed Supreme Court's denial of defendants' motion to dismiss plaintiff's section 241 (6) claims (see id.).

The parties each moved at the Appellate Division for leave to appeal to this Court. In separate orders granting those motions, the Appellate Division certified the following question: "Was the order of this Court, which modified the order of the Supreme Court, properly made?" For the reasons that follow, we modify the court's order and answer in the negative.


Plaintiff's Labor Law § 240 (1) Claim Labor Law § 240 (1) mandates that building owners and contractors: "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

The statute imposes absolute liability on building owners and contractors whose failure to "provide proper protection to workers employed on a construction site" proximately causes injury to a worker (see Misseritti, 86 NY2d at 490). Whether a plaintiff is entitled to recovery under Labor Law § 240 (1) requires a determination of whether the injury sustained is the type of elevation related hazard to which the statute applies (see Rocovich v Consol. Edison Co., 78 NY2d 509, 513 [1991] ["violation of the statute cannot establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury"] [internal quotation marks omitted]).

Our jurisprudence defining the category of injuries that warrant the special protection of Labor Law § 240 (1) has evolved over the last two decades, centering around a core premise: that a defendant's failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability. Beginning in Rocovich, we stated that section 240 (1)'s contemplated hazards are: "those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured" (78 NY2d at 514).

In Rocovich, the plaintiff was injured at his work site when his right ankle and foot accidentally became immersed in hot oil in a 12-inch-deep trough (see id. at 511). We denied recovery, finding it "difficult to imagine how plaintiff's proximity to the 12-inch trough could have entailed an elevation-related risk which called for any of the protective devices of the types listed in section 240 (1)" (id. at 514-515). Subsequently, in Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494 [1993]), we refined Rocovich, stating that the reach of Labor Law ยง 240 (1) is "limited to such specific ...

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