Banscher v. Actus Lend Lease, LLC

• Decision Date: 27 February 2013
• Citation: 2013 N.Y. Slip Op. 01222,960 N.Y.S.2d 183,103 A.D.3d 823
• Parties: John BANSCHER, et al., appellants, v. ACTUS LEND LEASE, LLC, et al., respondents.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 823

960 N.Y.S.2d 183

2013 N.Y. Slip Op. 01222

John BANSCHER, et al., appellants,

v.ACTUS LEND LEASE, LLC, et al., respondents.

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

Feb. 27, 2013.

William H. Rosvally, Goldens Bridge, N.Y., for appellants.

Cartafalsa, Slattery, Turpin & Lenoff, Tarrytown, N.Y. (Christopher J. Turpin and B. Jennifer Jaffee of counsel), for respondents.

WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.

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, Westchester County (O. Bellantoni, J.), entered November 25, 2011, as denied their motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) and granted that branch of the defendants' cross motion which was for summary judgment dismissing that cause of action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff John Banscher (hereinafter the injured plaintiff) allegedly was injured while he was installing shingles on a pitched roof, when a water jug that belonged to another worker rolled down the roof and hit the injured plaintiff, causing him to fall onto the surface of the roof. The defendant Atlantic Marine Corps Communities, LLC, owned the building that was being constructed, and the defendant Actus Lend Lease, LLC (hereinafter together the defendants), was the project's construction manager. The injured plaintiff, and his wife suing derivatively, commenced this action to recover damages, inter alia, for personal injuries. The plaintiffs moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) and the defendants cross-moved for summary judgment, among other things, dismissing that cause of action. The Supreme Court denied the plaintiffs' motion and granted that branch of the defendants' cross motion.

Labor Law § 240(1) is designed to prevent those types of accidents in which a safety device of the type identified in the statute is inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person ( see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82). However, not every object that falls on a worker gives rise to the extraordinary protections of Labor Law § 240(1): a plaintiff must show that, at the time the object fell, it was being hoisted or secured, or that the falling object required securing for the purposes of the undertaking ( see Outar v. City of New York, 5 N.Y.3d 731, 732, 799 N.Y.S.2d 770, 832 N.E.2d 1186;Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085;Mendez v. Jackson Dev. Group, Ltd., 99 A.D.3d 677, 951 N.Y.S.2d 736).

Here, the defendants...