Favreau v. Barnett & Barnett, LLC

Lahtinen, J.

(concurring in part and dissenting in part). We respectfully dissent from that portion of the majority’s decision that dismisses the Labor Law § 240 (1) cause of action. Here, as in Striegel v Hillcrest Hgts. Dev. Corp. (100 NY2d 974 [2003]), plaintiff was working on a sloped roof when he slipped on ice on the roof, fell, and allegedly sustained injuries. Working on a sloped roof implicates a recognized gravity-related risk and there are specific safety devices designed to address that risk (see id. at 978; see also Toefer v Long Is. R.R., 4 NY3d 399, 406 [2005] [the risks intended to be protected by Labor Law § 240 (1) “can be inferred from the ‘protective means’ set forth in the statute”]). Both here and in Striegel no safety devices were provided. The plaintiff in Striegel—unlike here—also slid part way down the roof, but his injuries had ostensibly occurred in the initial fall and not the subsequent slide (Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d at 976). We are not persuaded that the benign slide—the only apparent element missing in this case that was present in Striegel—serves as an essential element without which the Labor Law § 240 (1) cause of action must fail. In Striegel, the Court of Appeals concluded by stating: “In short, plaintiff was subject to an elevation-related risk while working on this particular roof, and he was not provided with any safety devices. In addition, the failure to provide any safety devices was a proximate cause of plaintiffs injuries. He was within the protective ambit of Labor Law § 240 (1)” {id. at 978). The same can be said of plaintiff in the current case. Accordingly, we would affirm Supreme Court’s order.

Peters, J., concurs. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied defendant’s motion dismissing the Labor Law § 240 (1) cause of action; motion granted to that extent, summary judgment awarded to defendant and said cause of action dismissed; and, as so modified, affirmed.