Nevins v. Essex Owners Corp.

• Decision Date: 23 March 1999
• Citation: 687 N.Y.S.2d 114,259 A.D.2d 384
• Parties: TERRENCE NEVINS, Appellant,<BR>v.<BR>ESSEX OWNERS CORP., Respondent and Third-Party Plaintiff-Respondent.<BR>ACCELL ELEVATOR OPERATIONS, INC., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

259 A.D.2d 384

687 N.Y.S.2d 114

TERRENCE NEVINS, Appellant,

v. ESSEX OWNERS CORP., Respondent and Third-Party Plaintiff-Respondent.ACCELL ELEVATOR OPERATIONS, INC., Third-Party Defendant-Respondent.

Decided March 23, 1999.

Concur €” Williams, J. P., Tom, Wallach and Mazzarelli, JJ.

The basic facts are uncontroverted. Plaintiff was employed by third-party defendant as a mechanic conducting elevator renovation services for defendant owner. Plaintiff, while in the bottom of the elevator pit, was testing whether the moving elevator would clear an angle iron or a bracket he had installed in the elevator shaft approximately four feet from the bottom of the pit. To do so, he activated a "run station," or a remote control box, to move the elevator into place alongside the angle iron. The run station has two switches, a directional button and a power switch, both of which must be depressed to allow the elevator to run. Although plaintiff deactivated both switches as the descending elevator reached the desired location, about four feet above floor level, the elevator, rather than stopping, continued to the bottom, crushing him and causing severe injuries. Plaintiff commenced this personal injury action sounding in common-law negligence and violations of Labor Law §§ 240, 241 (6) and § 241-a and, insofar as is presently applicable, moved for summary judgment on the section 241-a claim by reason of the absence of planking. It is undisputed that no planking was employed in the elevator shaft for the renovation work.

The IAS Court denied summary judgment to plaintiff, finding factual issues as to whether this renovation rose to the level of construction or demolition activities as required by the statute and whether the use of planking might even have obstructed the work from being done. However, there was an adequate basis for the court to have dismissed the claim as a matter of law.

Labor Law § 241-a provides that workers "in or at elevator shaftways * * * in the course of construction or demolition shall be protected by sound planking * * * laid across the opening at levels not more than two stories above and not more than one story below [them]." The statute, by its terms, does not apply to this situation. The point of the planking is to protect the construction worker either from falling through the shaft for more than one story (cf., Fuller v Catalfamo, 223 AD2d 850 [plaintiff fell two stories through stairwell opening at construction site]; cf., Anarumo v...