Keavey v. New York State Dormitory Authority ( 2005 )

Appeal and cross appeal from an order of the Supreme Court, Erie County (John R Lane, J.), entered July 28, 2004 in a personal injury action. The order, insofar as appealed from, denied that part of defendant’s motion for summary judgment dismissing the Labor Law § 240 (1) cause of action and granted that part of defendant’s motion for summary judgment dismissing the Labor Law § 241 (6) cause of action and granted plaintiff’s cross motion for partial summary judgment on liability on the Labor Law § 240 (1) cause of action.

It is hereby ordered that the order so appealed from be and the same hereby is modified on the law by granting the motion in its entirety, dismissing the complaint and denying the cross motion and as modified the order is affirmed without costs.

IVIemorandum: Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries that he sustained while he was employed by a subcontractor as an apprentice roofer to perform construction work on a building owned by defendant. On the date of the accident, plaintiff was covering an eight-foot-high stack of insulation boards with a tarp. Plaintiff was walking backwards on top of the stack of boards and was pulling the tarp when his right foot slipped into a gap between the boards. He fell into the gap up to his knee, injuring his right ankle and foot.

Supreme Court properly granted that part of defendant’s motion seeking summary judgment dismissing the Labor Law § 241 (6) cause of action. The regulations on which plaintiff relies are not applicable to the facts of this case (see Luckern v Lyonsdale Energy Ltd. Partnership, 281 AD2d 884, 886 [2001]; Flihan v Cornell Univ., 280 AD2d 994 [2001]). The court erred, however, in granting plaintiff’s cross motion seeking partial summary judgment on liability under Labor Law § 240 (1) and in denying that part of defendant’s motion seeking summary judgment dismissing that cause of action. Thus, we modify the order accordingly. The hazard at issue herein to which plaintiff was exposed, i.e., slipping into a gap between insulation boards, was one of “the usual and ordinary dangers of a construction site, and [was not one of] the extraordinary elevation risks envisioned by Labor Law § 240 (1)” (Rodriguez v Margaret Tietz Ctr. for Nursing Care, 84 NY2d 841, 843 [1994]; see Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914, 915-916 [1999]; Robinson v East Med. Ctr., LP, 17 AD3d 1027, 1027-1028 [2005]).

All concur except Hurlbutt, J.E, and Gorski, J., who dissent in part in accordance with the following memorandum.