McCallister v. 200 Park, L.P.
| Decision Date | 28 February 2012 |
| Citation | 92 A.D.3d 927,2012 N.Y. Slip Op. 01595,939 N.Y.S.2d 538 |
| Parties | Steve McCALLISTER, respondent, v. 200 PARK, L.P., et al., appellants(and a third-party action). |
| Court | New York Supreme Court — Appellate Division |
2012 N.Y. Slip Op. 01595
92 A.D.3d 927
939 N.Y.S.2d 538
Steve McCALLISTER, respondent,
v.
200 PARK, L.P., et al., appellants(and a third-party action).
Supreme Court, Appellate Division, Second Department, New York.
Feb. 28, 2012.
[939 N.Y.S.2d 539]
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Debra A. Adler and Eugene T. Boulé of counsel), for appellants.
Jeffrey J. Shapiro & Associates, LLC (Pollack Pollack Isaac & DeCicco, New York, N.Y. [Brian J. Isaac and Jillian Rosen], of counsel), for respondent.
WILLIAM F. MASTRO, A.P.J., L. PRISCILLA HALL, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.[92 A.D.3d 927] In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schack, J.), dated February 28, 2011, which denied their motion for summary judgment dismissing the complaint and granted the plaintiff's cross motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).
ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the defendants' motion which were for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed, with costs to the plaintiff.
On October 8, 2008, the plaintiff and his foreman, employees of the third-party defendant, Godsell Construction Corp. (hereinafter Godsell), were tasked with transporting moveable baker scaffolds from a Godsell job site to the 32nd floor of another building where Godsell was doing work about 10 blocks away. Four disassembled scaffolds were secured on an assembled scaffold for transport. The platform of the assembled scaffold was four feet high. The total weight of the four stacked scaffolds was about 450 to 550 pounds. To wheel the scaffold, the plaintiff pulled from the front while the foreman pushed from the rear. About halfway to the other building, the front right wheel broke off. The plaintiff held up the corner of the scaffold with the [92 A.D.3d 928] broken wheel as he continued to pull the scaffold. Upon arriving at the building, the plaintiff and the foreman took the scaffold in a freight elevator to the 32nd floor. As they proceeded through the fire door into a five-foot wide hallway at the job site, the front left wheel broke off as well. The foreman then told the plaintiff they needed to move the scaffold further into the job site and to the left, out of the way of the fire door. The plaintiff squatted down with the bars of the scaffold on his chest in order to pick up the wheelless end of the scaffold. However, rather than moving it to the side as the plaintiff expected, the foreman pushed the scaffold towards him. The scaffold fell forward onto the plaintiff's chest, allegedly pinning him against the wall and injuring his spine.
The plaintiff commenced this action asserting causes of action to recover damages for common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The defendants moved for summary judgment dismissing the complaint, and the plaintiff cross-moved for summary judgment on the issue of liability on the
[939 N.Y.S.2d 540]
cause of action alleging a violation of Labor Law § 240(1). In the order appealed from, the Supreme Court denied the defendants' motion, and granted the plaintiff's cross motion. The defendants appeal from the order. We modify.
Initially, the Supreme Court properly considered the plaintiff's cross motion. While the cross motion was untimely ( see Brill v. City of New...
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