Bain v. 50 W. Dev., LLC

• Decision Date: 11 February 2021
• Docket Number: Case No. 2019-04696,Index No. 160488/16,13048
• Citation: 138 N.Y.S.3d 324 (Mem),191 A.D.3d 496
• Parties: Kendell BAIN, Plaintiff–Appellant–Respondent, v. 50 WEST DEVELOPMENT, LLC, et al., Defendants–Respondents–Appellants. [And a Third-Party Action]
• Court: New York Supreme Court — Appellate Division

191 A.D.3d 496

138 N.Y.S.3d 324 (Mem)

Kendell BAIN, Plaintiff–Appellant–Respondent,

v. 50 WEST DEVELOPMENT, LLC, et al., Defendants–Respondents–Appellants.[And a Third-Party Action]

13048

Index No. 160488/16

Case No. 2019-04696

Supreme Court, Appellate Division, First Department, New York.

ENTERED February 11, 2021

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant-respondent.

Lewis Brisbois Bisgaard & Smith, LLP, New York (Nicholas Hurzeler of counsel), for respondents-appellants.

Manzanet–Daniels, J.P., Singh, Kennedy, Mendez, JJ.

Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered October 3, 2019, which, to the extent appealed from, as limited by the briefs, denied plaintiff's and defendants’ motions for summary judgment on the claims based upon Labor Law § 240(1) and Labor Law § 241(6) predicated upon a violation of Industrial Code § 23–1.22(b)(3), unanimously modified, on the law, to grant plaintiff's motion for partial summary judgment with respect to the Labor Law § 241(6) claim, and otherwise affirmed, without costs.

On the issue whether an elevation differential is "physically significant" to fall within the purview of § 240(1), a court must consider, inter alia, "the weight of the object and the amount of force" the object is "capable of generating, even over the course of a relatively short descent" ( Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 605, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009] ; see also Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 935 N.Y.S.2d 551, 959 N.E.2d 488 [2011] ). The motion court correctly denied the cross motions for summary judgment with respect to defendants’ liability under § 240(1) as triable issues exist regarding the cumulative weight of the particle board sheets that fell on plaintiff from an A-frame cart after it toppled when its wheel was caught in a gap in the ramp structure as workers were wheeling it (see Runner, 13 N.Y.3d at 604–605, 895 N.Y.S.2d 279, 922 N.E.2d 865 ; Touray v. HFZ 11 Beach St. LLC, 180 A.D.3d 507, 115 N.Y.S.3d 877 [1st Dept. 2020] ).

However, plaintiff is entitled to partial summary judgment on his § 241(6) claim predicated upon Industrial Code § 23–1.22(b)(3), which requires ramp planks to be, inter alia, "laid close, butt jointed and securely nailed" (see e.g. Weiss v. El Ad Props. NY LLC, 62 A.D.3d 472, 473, 877 N.Y.S.2d 895 [1st Dept. 2009] ; Arrasti v. HRH Constr. LLC, 60 A.D.3d 582, 876 N.Y.S.2d 373 [1st Dept. 2009] ). The record shows, inter alia, that the ramp where plaintiff's accident occurred consisted of two strips of planking that was loosely cobbled together, not wide enough to span the width of the two 2½ foot wide swinging doors. Moreover, there was a large...