Shaffer v. Niagara Mohawk Power Corp. , 561 N.Y.S.2d 862 ( 1990 )

Order modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Plaintiff was injured as he attempted to guide a pick or scaffolding bridge into place. At the time, plaintiff, secured by a safety belt, was standing on a scaffold approximately 14 feet above the ground. The pick was being lowered by means of a rope and makeshift pulley which was controlled by a fellow worker. When the pick reached a point approximately three feet above plaintiff’s head, its speed of descent increased. Plaintiff grabbed the pick and attempted to position it. As he did so, he twisted his back. Special Term denied plaintiff’s motion for summary judgment under subdivision (1) of section 240 of the Labor Law on the ground that "a clear question of fact exists as to whether [the procedure used for lowering the pick] should have been used under the circumstances”. From our view of the record, we find that subdivision (1) of section 240 of the Labor Law is inapplicable because the plaintiff has failed to satisfy the "falling worker or objects” test expressed in Staples v Town of Amherst (146 AD2d 292). Under the circumstances, Special Term’s order is modified and summary judgment is granted in favor of defendants dismissing plaintiff’s cause of action under subdivision (1) of section 240 of the Labor Law.

All concur, except Dillon, P. J., and Pine, J., who dissent and vote to affirm in the following memorandum.