Zdunczyk v. Ginther

• Decision Date: 22 February 2005
• Docket Number: 2003-07380.,2003-07382.
• Citation: 15 A.D.3d 574,792 N.Y.S.2d 496,2005 NY Slip Op 01352
• Parties: ANDRZEJ ZDUNCZYK, Appellant, v. RAYMOND GINTHER, Defendant, and 1326 APARTMENTS CORP., Respondent. (And Third-Party Actions.)
• Court: New York Supreme Court — Appellate Division

15 A.D.3d 574

792 N.Y.S.2d 496

2005 NY Slip Op 01352

ANDRZEJ ZDUNCZYK, Appellant, v. RAYMOND GINTHER, Defendant, and 1326 APARTMENTS CORP., Respondent. (And Third-Party Actions.)

2003-07380.

2003-07382.

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

February 22, 2005.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of (1) an order of the Supreme Court, Kings County (M. Garson, J.), dated May 22, 2003, as reserved decision on those branches of the motion of the defendant 1326 Apartments Corp., which were for summary judgment dismissing the causes of action alleging violations of Labor Law § 240 (1) and § 241 (6) insofar as asserted against it, and (2) an order of the same court dated June 17, 2003, as granted those branches of the motion of the defendant 1326 Apartments Corp., which were for summary judgment dismissing those causes of action insofar as asserted against it.

Ordered that the appeal from so much of the order dated May 22, 2003, as reserved decision on those branches of the motion of the defendant 1326 Apartments Corp., which were for summary judgment dismissing the causes of action alleging violations of Labor Law § 240 (1) and § 241 (6) insofar as asserted against it is dismissed, as no appeal lies as of right from that portion of the order (see Katz v Katz, 68 AD2d 536 [1979]) and, in any event, that portion of the order was superseded by the order dated June 17, 2003; and it is further,

Ordered that the order dated June 17, 2003, is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the respondent.

The plaintiff allegedly sustained injuries to his hand when, while assisting a coworker in lowering a bucket of construction debris, the coworker suddenly released the rope to which the bucket was attached. The defendant 1326 Apartments Corp. (hereinafter the defendant) made a prima facie showing of entitlement to judgment as a matter of law dismissing the plaintiff's cause of action alleging violation of Labor Law § 240 (1) by demonstrating that the plaintiff's injury, while "tangentially related to the effects of gravity upon the bucket . . . he was lowering, . . . was not caused by the limited type of elevation-related hazards encompassed by Labor Law § 240 (1)" (Aloi v Structure-Tone, Inc., 2 AD3d 375, 376 [2003]). In opposition, the plaintiff failed to raise a triable issue of fact that his injury arose from an elevation-related risk within the contemplation of the statute, rather than from the usual...