In the course of his employment as a construction laborer, plaintiff was injured while moving a filtration unit weighing in excess of 1,000 pounds within a building owned by defendant Wyeth Pharmaceuticals, Inc. Plaintiff and a coworker had used two pallet jacks to hoist the unit 8 to 10 inches off the floor in order to move it. With the unit sitting on the pallet jacks, plaintiff pulled and his coworker pushed the unit along. In the process of moving the unit horizontally across the floor, plaintiff slipped and grabbed the unit, causing it to tip over and land on his leg as he fell to the ground.
Plaintiff commenced this action against Wyeth and, subsequently, a separate action against defendants Stantec Consulting Group, Inc., Stantec Architecture, Inc., and Landrock E&S Consulting, Inc.—who Wyeth had hired to ensure the safety and
While leave to amend a pleading "`should be freely granted'" so long as no prejudice befalls the nonmoving party and "`the amendment is not plainly lacking in merit'" (Shelton v New York State Liq. Auth., 61 A.D.3d 1145, 1149 , quoting Smith v Haggerty, 16 A.D.3d 967, 967-968 ), such a decision rests squarely in the discretion of the trial court and will not be disturbed absent a clear abuse of discretion (see CPLR 3025 [b]; Swergold v Cuomo, 70 A.D.3d 1290, 1294 ; Leclaire v Fort Hudson Nursing Home, Inc., 52 A.D.3d 1101, 1102 ). Here, assuming without finding, as Supreme Court did, that the proposed amendment resulted in no prejudice to defendants, we agree with Supreme Court's determination that it was lacking in merit.
Labor Law § 240 (1) requires that contractors and owners provide adequate safety devices to protect workers against elevation-related safety risks (see Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513, 521 ; Sereno v Hong Kong Chinese Rest., 79 A.D.3d 1414, 1414 ; Johnson v Small Mall, LLC, 79 A.D.3d 1240, 1241 ). However, "not all gravity-related risks fall within the parameters of the statute" (Sereno v Hong Kong Chinese Rest., 79 AD3d at 1414; see Labor Law § 240 ; Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 499-501 ) and, therefore, "not every object that falls on a worker gives rise to the extraordinary protections of Labor Law § 240 (1)" (Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 267 ). "[T]he single decisive question is whether [a] plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 603 ).
Here, Supreme Court's determination that plaintiff's injury was not the result of a risk related to an elevation differential was supported by the record. We note that the object that resulted in plaintiff's injury was not being hoisted or secured (compare Narducci v Manhasset Bay Assoc., 96 NY2d at 268; Mueller v PSEG Power N.Y., Inc., 83 A.D.3d 1274, 1275 ; Cambry v Lincoln Gardens, 50 A.D.3d 1081, 1083 ) or otherwise being moved vertically from one elevation to another (see Runner v New York Stock Exch., Inc., 13 NY3d at 602). Rather, it was being moved horizontally and tipped over because, when plaintiff slipped, he grabbed it and pulled it toward him. Thus, it was not the elevation of the unit from the ground that presented a risk to plaintiff. Indeed, there is nothing in the record
Plaintiff's remaining contentions have been examined and are either academic or unavailing.
Ordered that the order, amended order and second amended order are affirmed, with one bill of costs.