Gallagher v. Andron Construction Corp.

• Decision Date: 19 September 2005
• Docket Number: 2004-07788.
• Citation: Gallagher v. Andron Construction Corp., 21 A.D.3d 988, 801 N.Y.S.2d 373, 2005 NY Slip Op 6772 (N.Y. App. Div. 2005)
• Parties: BERNARD GALLAGHER et al., Respondents, v. ANDRON CONSTRUCTION CORP., Appellant.
• Court: New York Supreme Court — Appellate Division

21 A.D.3d 988

801 N.Y.S.2d 373

2005 NY Slip Op 06772

BERNARD GALLAGHER et al., Respondents, v. ANDRON CONSTRUCTION CORP., Appellant.

2004-07788.

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

September 19, 2005.

In an action to recover damages for personal injuries, etc., the defendant Andron Construction Corp. appeals from an interlocutory judgment of the Supreme Court, Westchester County (Murphy, J.), entered August 4, 2004, which, upon the denial of that branch of its motion, made at the close of the plaintiffs' case, which was pursuant to CPLR 4401 for judgment as a matter of law dismissing the Labor Law § 240 (1) cause of action, and upon a jury verdict, is in favor of the plaintiffs and against it on the issue of liability.

Ordered that the interlocutory judgment is reversed, on the law and the facts, with costs, that branch of the motion which was pursuant to CPLR 4401 for judgment as a matter of law dismissing the Labor Law § 240 (1) cause of action is granted, and the matter is remitted to the Supreme Court, Westchester County, for a new trial on the issue of liability on the remaining causes of action.

The plaintiff Bernard Gallagher (hereinafter the plaintiff) was injured when he fell while descending an outdoor stairway attached to a shanty on the roof of a building at a construction site at which he worked as a foreman. The plaintiff was returning from the shanty, which served as an office and storage facility for the project, when he slipped on snow and ice, fell over the side of the stairway, and landed on the ground below.

At the close of the plaintiffs' case, the Supreme Court, inter alia, denied that branch of the defendant's motion which was pursuant to CPLR 4401 for judgment as a matter of law dismissing the Labor Law § 240 (1) cause of action based on its contention that the stairway provided proper protection. Subsequently, the jury found that the defendant breached its statutory duty to the plaintiff under Labor Law § 240 (1) and that the breach was a substantial factor in the happening of the accident.

On appeal, the defendant contends that the Supreme Court erred in denying that branch of its motion which was for judgment as a matter of law dismissing the Labor Law § 240 (1) cause of action. We agree.

Where a fall occurs from a permanent stairway, no liability pursuant to Labor Law § 240 (1) can attach (see Gold v. NAB Constr. Corp., 288 AD2d 434, 435 [2001]; Paciente v. MBG Dev., 276 AD2d 761 [2000]; Norton v. Park Plaza Owners Corp., 263 AD2d 531 [1999]; Barrett v. Ellenville Natl. Bank, 255 AD2d 473 [1998]). In the instant case, the plaintiff contended that the stairway was temporary and therefore fell within the catchall phrase set forth in the statute of "other devices" requiring proper protection (Labor Law § 240 [1]; see e.g. Wescott v. Shear, 161 AD2d 925 [1990]). However, the distinction of permanent versus temporary is merely one aid in determining whether the device in question was a normal appurtenance to a building or a device to protect the worker from elevation-related risks or hazards (see Brennan v. RCP Assoc., 257 AD2d 389 [1999]). It is undisputed that the stairway was attached and secured to the exterior of the building. Since the injury in question did not result from an elevation hazard contemplated to be protected by the statute, absolute liability pursuant to Labor Law § 240 (1) against the owner should not be imposed (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]; Kanarvogel...