Aquilino v. E.W. Howell Co., Inc.

• Decision Date: 24 May 2004
• Docket Number: 2003-02883.
• Citation: 7 A.D.3d 739,776 N.Y.S.2d 893,2004 NY Slip Op 04136
• Parties: LOUIS AQUILINO et al., Appellants, v. E.W. HOWELL CO., INC., et al., Respondents. (And Other Titles.)
• Court: New York Supreme Court — Appellate Division

7 A.D.3d 739

776 N.Y.S.2d 893

2004 NY Slip Op 04136

LOUIS AQUILINO et al., Appellants, v. E.W. HOWELL CO., INC., et al., Respondents. (And Other Titles.)

2003-02883.

Appellate Division of the Supreme Court of the State of New York, Second Department.

May 24, 2004.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Lally, J.), entered March 11, 2003, as denied their motion for summary judgment on the issue of liability on their Labor Law § 240 (1) cause of action and as granted the cross motion of the defendant E.W. Howell Co., Inc., and that branch of the cross motion of the defendants Saks & Company and Simon Property Group, Inc., which were for summary judgment dismissing their Labor Law § 240 (1) cause of action.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

The plaintiff Louis Aquilino (hereinafter the plaintiff) was hired to install a smoke alarm system in a newly-constructed store on property owned by the defendant Simon Property Group, Inc., and leased by the defendant Saks & Company. The plaintiff sustained injuries when he fell through an exit door into the loading dock well several feet below.

At the time of the accident, the plaintiff and his partner were working inside the store. The plaintiff's partner was on a single-man lift installing a smoke detector in the ceiling and the plaintiff was standing on the floor assisting him by pulling wire from one alarm to the next. The plaintiff fell through the exit door when, in an attempt to block a cold draft, he inserted a piece of cardboard into a window cutout on the door and inadvertently pushed open the door.

"The extraordinary protections of Labor Law § 240 (1) extend only to a narrow class of special hazards, and do `not encompass any and all perils that may be connected in some tangential way with the effects of gravity'" (Nieves v Five Boro A. C. & Refrig. Corp., 93 NY2d 914, 915-916 [1999], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). "The core objective of the statute in requiring protective devices for those working at heights is to allow them to complete their work safely and prevent them from falling. Where an injury results from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first instance, no section 240 (1) liability exists" (Nieves v Five Boro A.C. & Refrig. Corp., supra at 916; see Melber v 6333 Main St., 91 NY2d 759, 763-764 [1998]).

The work in which the plaintiff was involved, i.e., assisting his...