OPINION OF THE COURT
Some New York courts have interpreted our decision in Misseritti v Mark IV Constr. Co. (86 N.Y.2d 487 ) to preclude
On September 28, 2005, at approximately 8:30 A.M., plaintiff Antoni Wilinski
Plaintiff commenced suit alleging violations of Labor Law § 240 (1) and Labor Law § 241 (6), the latter pursuant to 12
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 A.D.3d 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 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
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 Consolidated Edison Co., 78 N.Y.2d 509, 513  ["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
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 N.Y.2d 494 ), we refined Rocovich, stating that the reach of Labor Law § 240 (1) is "limited to such specific gravity-related accidents as [a worker] falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" (id. at 501).
In Misseritti, we applied a similar rationale. The plaintiff's decedent in that case sustained severe injuries, leading to his eventual death, when a completed, concrete firewall collapsed on top of him (see 86 NY2d at 489). Before the wall collapsed, "decedent and his co-worker had just dismantled the scaffolding used to erect the completed fire wall and ... [m]asons had not yet vertically braced the wall with the ... planks it had on the work site" (id. at 491). We held that section 240 (1) did not apply to those facts, as the firewall did not collapse due to a failure to provide a protective device contemplated by the statute (see id.). We determined that, in fact, the kind of braces referred to in section 240 (1) are "those used to support elevated work sites not braces designed to shore up or lend support to a completed structure" (id.). Thus the firewall's collapse, though tragic in its consequences, was simply "the type of peril a construction worker usually encounters on the job site" (id.).
Intermediate appellate courts have cited Misseritti as support for the proposition that a plaintiff injured by a falling object has no claim under section 240 (1) where the plaintiff and the base of the object stood on the same level (see e.g. Brink v Yeshiva Univ., 259 A.D.2d 265 [1st Dept 1999] [citing Misseritti and holding that the collapse of an interior chimney at the same floor level as plaintiff was not attributable to elevation differentials to warrant the imposition of liability]; Matter of Sabovic v State of New York, 229 A.D.2d 586, 587 [2d Dept 1996] ["the wall which collapsed was at the same level as the work site and is not considered a falling object for purposes of Labor Law § 240 (1)"]; Corsaro v Mt. Calvary Cemetery, 214 A.D.2d 950, 950 [4th Dept 1995] [holding that a concrete form standing at ground level and estimated between 12 and 20 feet high was not a falling object because it was at the same level as the work site and not an elevation-related risk]). Here, the Appellate Division also relied on Misseritti in holding that the collapse of the pipes, like
We do not agree that Misseritti calls for the categorical exclusion of injuries caused by falling objects that, at the time of the accident, were on the same level as the plaintiff. Misseritti did not turn on the fact that plaintiff and the base of the wall that collapsed on him were at the same level. Rather, just as in Narducci, the absence of a causal nexus between the worker's injury and a lack or failure of a device prescribed by section 240 (1) mandated a finding against liability (see Misseritti, 86 NY2d at 490-491; Narducci, 96 NY2d at 268-269). Thus, we decline to adopt the "same level" rule, which ignores the nuances of an appropriate section 240 (1) analysis.
Moreover, the so-called "same level" rule is inconsistent with this Court's more recent decisions, namely Quattrocchi v F.J. Sciame Constr. Corp. (11 N.Y.3d 757 ) and Runner v New York Stock Exch., Inc. (13 N.Y.3d 599 ), neither of which are cited by the dissent. In Quattrocchi, we articulated for the first time that liability is not limited to cases in which the falling object was in the process of being hoisted or secured (see 11 NY3d at 759). Next, in Runner, the Court had occasion to apply section 240 (1) to novel factual circumstances that did not involve a falling worker or falling object (see 13 NY3d at 605).
As the "elevation differential ... [could not] be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent" (id. at 605), we held the defendants liable under Labor Law § 240 (1) for using a "jerry-rigged device" rather than hoists or pulleys as provided under the statute (see id. at 602, 605).
Applying Runner to the instant case, we hold that plaintiff is not precluded from recovery under section 240 (1) simply because he and the pipes that struck him were on the same level. The pipes, which were metal and four inches in diameter, stood at approximately 10 feet and toppled over to fall at least four feet before striking plaintiff, who is five feet, eight inches tall. That height differential cannot be described as de minimis given the "amount of force [the pipes] w[ere] able [to] generat[e]" (id. at 605) over their descent. Thus, plaintiff suffered harm that "flow[ed] directly from the application of the force of gravity to the [pipes]" (id. at 604; see also Rocovich, 78 NY2d at 514). However, though the risk here "ar[ose] from a physically significant elevation differential" (Runner, 13 NY3d at 603), it remains to be seen whether plaintiff's injury was "the direct consequence of [defendants'] failure to provide adequate protection against [that] risk" (id.).
Moreover, there is an important distinction between the facts of this case and other cases where summary judgment has been granted in defendants' favor. Here, the pipes that caused plaintiff's injuries were not slated for demolition at the time of the accident. This stands in contrast to cases where the objects that injured the plaintiffs were themselves the target of demolition when they fell (see e.g. Brink, 259 AD2d at 265). In those instances, imposing liability for failure to provide protective devices to prevent the walls or objects from falling, when their fall was the goal of the work, would be illogical. Here, however, securing the pipes in place as workers demolished nearby walls would not have been contrary to the objectives of the work plan.
We conclude, therefore, that while there is a potential "causal connection between the object[s'] inadequately regulated descent and plaintiff's injury" (Runner, 13 NY3d at 605), neither party is entitled to summary judgment on plaintiff's Labor Law § 240 (1) claim. Whether plaintiff's injuries were proximately caused by the lack of a safety device of the kind required by the statute is an issue for a trier of fact to determine.
Plaintiff's Claims Under Labor Law § 241 (6)
Plaintiff's remaining claims arise under Labor Law § 241 (6), which provides:
As the statute is not self-executing, a plaintiff must set forth a violation of a specific rule or regulation promulgated pursuant
Defendants contend that this regulation is inapplicable to the instant matter because neither wind pressure nor vibration caused the pipes to fall, collapse or become weakened. Defendants argue that the Appellate Division's interpretation of the regulation — specifically, that "[a] fair reading of the section ... leads to the conclusion that the phrase `by wind pressure or vibration,' does not attach to the words `fall' or `collapse,' but only to the immediately preceding words, `be weakened'" (Wilinski, 71 AD3d at 539) — is incorrect and contradicts the purpose of the regulation.
While lower courts ruling on this issue have largely adopted defendants' proposed reading of the regulation (see German v City of New York, 14 Misc.3d 1204[A], 2006 NY Slip Op 52406[U], *5 [Sup Ct, NY County 2006]; Maternik v Edgemere By-The-Sea Corp., 19 Misc.3d 1118[A], 2008 NY Slip Op 50763[U], *7 n 11 [Sup Ct, Kings County 2008]; Gonzalez v Fortway LLC, 22 Misc.3d 1115[A], 2009 NY Slip Op 50132[U], *7 [Sup Ct, Kings County 2009]), we believe that the Appellate Division's interpretation is the better one. Thus, we affirm the court's finding that plaintiff is not required to show that the pipes fell or collapsed due to wind pressure or vibration to state a claim under 12 NYCRR 23-3.3 (b) (3).
Plaintiff's second section 241 (6) claim arises under 12 NYCRR 23-3.3 (c), which provides:
"The thrust of this subdivision is to fashion a safeguard, in the form of `continuing inspections,' against hazards which are created by the progress of the demolition work" (Monroe v City of New York, 67 A.D.2d 89, 100 [2d Dept 1979]). Here, defendants failed to meet their burden of showing either that they complied
Accordingly, the order of the Appellate Division should be modified, without costs, in accordance with this opinion and, as so modified, affirmed, and the certified questions answered in the negative.
PIGOTT, J. (dissenting in part).
Because the majority runs far afield from this Court's Labor Law § 240 (1) precedent, I dissent.
To prevail on a motion for summary judgment on the issue of liability under Labor Law § 240, a plaintiff must demonstrate that his or her injuries resulted from "dangerous conditions posed by elevation differentials" at a work site (Misseritti v Mark IV Constr. Co., 86 N.Y.2d 487, 491 ), and that the elevation-related risk occurred "because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 268 ).
At the time of the accident, plaintiff was demolishing the walls of a warehouse building. In front of the brick wall that plaintiff was demolishing were two metal plumbing pipes, approximately 8 to 10 feet in height stretching vertically from the floor on which plaintiff was standing. Two workers, using hammers and crowbars, demolished an adjacent wall about four feet away from plaintiff, causing that wall to collapse into the pipes. The pipes toppled onto plaintiff causing injury.
On this record, plaintiff has not demonstrated his entitlement to summary judgment because he failed to articulate either an elevation-related risk or an enumerated safety device that would have prevented his injuries. To the contrary, in my view, defendants are entitled to summary judgment since the uncontested facts establish that plaintiff's injuries were not the result of a hazard contemplated by section 240 (1).
In Misseritti, we ruled that the injuries sustained, caused by the collapse of a completed fire wall, were not the result of an elevation-related accident subject to the protections of section 240 (1), because the plaintiff failed to demonstrate that "the decedent was working at an elevated level at the time of his tragic accident" and it could not "be said that the collapse of a completed fire wall is the type of elevation-related accident that section 240 (1) is intended to guard against" (86 NY2d at 491).
These principles were reinforced in Capparelli v Zausmer Frisch Assoc., Inc., decided at the same time as Narducci, wherein the plaintiff cut his right hand and wrist when he attempted to stop a falling light fixture from hitting him while stationed halfway up a ladder. There, we concluded that the plaintiff's claim did not fall within the ambit of section 240 (1), stating that the statute does not apply when "there [is] no height differential between [the] plaintiff and the falling object" (96 NY2d at 269).
The vertical plumbing pipes in this case are akin to the completed fire wall in Misseritti and the steel plate in Melo. It is of no moment that the pipes rose at least four feet above the plaintiff's height, since it is undisputed that the base of the pipes were at the same level as plaintiff and his work site.
Nor did plaintiff demonstrate that an enumerated safety device would have prevented the accident from occurring. In his motion for summary judgment, plaintiff merely claimed that defendants failed to provide him with an enumerated safety device to adequately secure the pipes. But that's not enough. To merit summary judgment on the issue of liability under section 240 (1) plaintiffs must show that there was a specific, enumerated safety device that would have prevented the accident. Here, plaintiff offered only conclusory statements, thereby failing to demonstrate an issue of fact warranting trial.
In denying defendants' motion for summary judgment, the majority adds confusion and uncertainty to our decisions in Misseritti, Narducci, and Melo and to the reasonable interpretation given them by the Appellate Divisions (see e.g. Brink v Yeshiva Univ., 259 A.D.2d 265 [1st Dept 1999]; Matter of Sabovic v State of New York, 229 A.D.2d 586, 587 [2d Dept 1996]; Corsaro v Mt. Calvary Cemetery, 214 A.D.2d 950, 950-951 [4th Dept
Order modified, etc.