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6664 Stephen Kempisty, Plaintiff-Appellant v. 246 Spring Street

New York Supreme and/or Appellate Courts Appellate Division, First Department

February 9, 2012


Kempisty v 246 Spring St., LLC

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.

Decided on February 9, 2012

Tom, J.P., Sweeny, DeGrasse, Abdus-Salaam, Manzanet-Daniels, JJ.

Order, Supreme Court, New York County, (Martin Shulman, J.) entered November 22, 2010, which denied plaintiff's motion for summary judgment on his Labor Law § 241(6) claim based on violations of Industrial Code (12 NYCRR) § 23-8.2(c)(3) and § 23-8.1(f)(1)(iii), and deemed plaintiff's § 241(6) claim based on violations of other sections of the Industrial Code abandoned, and, upon a search of the record, granted summary judgment to defendants dismissing plaintiff's Labor Law § 240(1) claim, unanimously modified, on the law, to the extent of reinstating the § 240(1) claim, granting plaintiff summary judgment on that claim, and reinstating the § 241(6) claims deemed abandoned except for those premised on violations of Industrial Code §§ 23-3.3, 23-3.4 and 23-6.1, and otherwise affirmed, without costs.

The motion court erred in finding that Labor Law § 240(1) does not apply in this case because there was no appreciable height differential between plaintiff and the object being hoisted, a four-ton steel block, that crushed plaintiff's foot. The elevation differential cannot be considered de minimis when the weight of the object being hoisted is capable of generating an extreme amount of force, even though it only traveled a short distance (see Runner v New York Stock Exch., Inc., 13 NY3d 599 [2009]; see also Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 [2011]).

Having concluded that § 240(1) applies, the question is whether or not defendants established the existence of an issue of fact sufficient to deny plaintiff summary judgment. They have not. Plaintiff established that the accident was proximately caused by the application of the force of gravity to the block. Plaintiff's expert asserts the block was not properly secured, through the use of tag lines or other safety devices, to prevent it from moving while being hoisted.

In opposition, defendants' expert merely attempts to shift proximate cause of the accident to plaintiff for walking in the path of the block, and he states, in conclusory fashion, that tag lines were not required to be used during the load test. This does not sufficiently challenge the conclusions of plaintiff's expert that the accident was the direct result of the application of gravity to the block.

Regarding plaintiff's § 241(6) claim, we agree that defendants raised an issue of fact sufficient to defeat plaintiff's motion. The motion court providently exercised its discretion in considering the affidavit submitted from defendant's expert. Contrary to the motion court's determination, however, plaintiff did not abandon the § 241(6) claim insofar as premised on the remaining Industrial Code sections. This case differs from Musillo v Marist Coll. (306 AD2d 782, 784 n.1 [2003]), upon which the motion court relied, insofar as here it was plaintiff who moved for summary judgment. Where a defendant so moves, it is appropriate to find that a plaintiff who fails to respond to allegations that a certain section is inapplicable or was not violated be deemed to abandon reliance on that particular Industrial Code section. However, that is not the case where the plaintiff is the moving party. Nevertheless we find, upon a search of the record, that the 241(6) claims premised on § 23-3.3, which pertains to demolition by hand, § 23-3.4, which pertains to mechanical methods of demolition, and § 23-6.1, which, by its terms, does not apply to cranes, are inapplicable under the circumstances presented, and should be dismissed.





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