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TOEFER v. LONG IS. R.R.

4 N.Y.3d 399 (2005)

828 N.E.2d 614

795 N.Y.S.2d 511

ARLENE TOEFER et al., as Coguardians of ERIC CASEY, Appellants, v. LONG ISLAND RAIL ROAD, Respondent and Third-Party Plaintiff. JANA CONSTRUCTION CO., INC., et al., Third-Party Defendants-Respondents, et al., Third-Party Defendants. (And a Fourth-Party Action.) ROBERT V. MARVIN et al., Appellants, v. KOREAN AIR INC. et al., Respondents, et al., Defendant.

Court of Appeals of the State of New York.

Decided April 5, 2005.

Attorney(s) appearing for the Case

Sacks and Sacks, LLP, New York City (Scott N. Singer, Kenneth Sacks and Daniel Weir of counsel), for appellants in the first above-entitled action.

Cerussi & Spring, White Plains (Peter Riggs, Ronald G. Crispi and David C. Zegarelli of counsel), for respondent in the first above-entitled action.

Montfort, Healy, McGuire & Salley, Garden City (Michael A. Baranowicz and Donald S. Neumann, Jr. of counsel), for Jana Construction Co., Inc., third-party defendant-respondent in the first above-entitled action.

Faust Goetz Schenker & Blee LLP, New York City (Erika C. Aljens of counsel), for Harris-Camden Terminal Company, third-party defendant-respondent in the first above-entitled action.

Fiedelman & McGaw, Jericho (Jeanne A. Cygan, Andrew Zajac, Dawn C. DeSimone, Elizabeth Anne Bannon and Rona L. Platt of counsel), for Defense Association of New York, Inc., amicus curiae in the first above-entitled action.

Powers & Santola, LLP, Albany (Michael J. Hutter of counsel), and Christopher S. Olson, Huntington, for appellants in the second above-entitled action.

Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for respondents in the second above-entitled action.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO and READ concur.

OPINION OF THE COURT

R.S. SMITH, J.

We decide in these cases that workers who fall when working on, or getting down from, the surface of a flatbed truck that is between four and five feet off the ground may not recover under Labor Law § 240 (1), because their injuries did not result from the sort of "elevation-related risk" that is essential to a cause of action under that section.

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