Rodriguez v. Margaret Tietz Center for Nursing Care, Inc.

84 N.Y.2d 841 (1994) 640 N.E.2d 1134 616 N.Y.S.2d 900

Gary Rodriguez, Respondent,
v.
Margaret Tietz Center for Nursing Care, Inc., Defendant and Third-Party Plaintiff. Restor Technologies, Inc., Third-Party Defendant-Appellant, et al., Fourth-Party Defendants.

Court of Appeals of the State of New York.

Decided September 13, 1994.

Gilroy Downes Horowitz & Goldstein, New York City (Lawrence C. Downes of counsel), for third-party defendant-appellant.

Birzon, Sobel & Szczepanowski, Smithtown (Mitchell J. Birzon of counsel), for respondent.

Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur in memorandum.

MEMORANDUM.

The judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and plaintiff's cause of action based on Labor Law § 240 dismissed.

Plaintiff in this case was exposed to the usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law § 240 (1). In placing a 120-pound beam onto the ground from seven inches above his head with the assistance of three other co-workers, Rodriguez was not faced with the special elevation risks contemplated by the statute (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501; Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 514).

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment appealed from and order of the Appellate Division brought up for review reversed, etc.