Reyes v. Magnetic Constr. Inc.

• Decision Date: 14 April 2011
• Citation: 2011 N.Y. Slip Op. 02958,83 A.D.3d 512,922 N.Y.S.2d 291
• Parties: Joshua REYES, et al., Plaintiffs–Respondents,v.MAGNETIC CONSTRUCTION, INC., et al., Defendants–Appellants,Universal Builders Supply, Inc., Defendant.[And Other Third–Party Actions].
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 512

922 N.Y.S.2d 291

2011 N.Y. Slip Op. 02958

Joshua REYES, et al., Plaintiffs–Respondents,

v.MAGNETIC CONSTRUCTION, INC., et al., Defendants–Appellants,Universal Builders Supply, Inc., Defendant.[And Other Third–Party Actions].

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

April 14, 2011.

Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Sheryl A. Bruzzese of counsel), for appellants.Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen of counsel), for respondents.ANDRIAS, J.P., SAXE, CATTERSON, ABDUS–SALAAM, MANZANET–DANIELS, JJ.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered August 5, 2010, which, insofar as appealed from as limited by the briefs, granted plaintiffs' motion for partial summary judgment as to their Labor Law § 240(1) claim, and denied defendants' cross motion for summary judgment dismissing that claim, unanimously reversed, on the law, without costs, the motion denied, the cross motion granted and the Labor Law § 240 (1) claim dismissed.

While working as a bricklayer foreman at the construction site of a hotel, plaintiff was injured when he tripped and fell as he was ascending a temporary staircase from the first floor to the second floor of the hotel. The temporary staircase between the first floor and the second floor was constructed in a manner such that the top tread was “wedged” under the concrete slab that formed the second floor of the hotel. The riser height of the staircase measured an average of 8 to 8 1/2 inches. However, because the concrete slab that formed the second floor landing was about nine inches thick, the riser height between the top tread of the staircase and top of the concrete slab (floor level) was about 16 to 19 inches. Plaintiff was holding onto a piece of plywood at the top of the staircase to pull himself up onto the second floor, when his right foot caught the edge of the slab, causing him to fall forward onto the floor.

The injuries sustained by plaintiff are not compensable under Labor Law § 240(1) because they did not occur as the result of an elevation-related or gravity-related risk ( 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 [1993] ). His trip and fall resulted from a hazard that was “wholly unrelated to the risk which brought about the need for the [stairs] in the first instance,” and was the result of “the usual and ordinary dangers of a construction site” ( ...