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Wells v. British American Development Corp.12/18/2003
This opinion is uncorrected and subject to revision before publication in the Official Reports.
MEMORANDUM AND ORDER
Calendar Date: October 14, 2003
Appeal from a judgment of the Supreme Court (Malone Jr., J.), entered January 14, 2003 in Albany County, which, inter alia, granted defendants' motion for summary judgment dismissing the complaint.
Plaintiff, in this personal injury action, was employed by Matzen Construction, Inc., a general contractor hired by defendants, the owners of property located in the Town of Colonie, Albany County, to excavate a construction site for an office building. On the date of the accident, November 20, 1996, plaintiff's responsibilities entailed laying out and tying steel used in the construction of the concrete footings and walls of the foundation. Plaintiff described the excavation as a hole approximately 16 to 20 feet below street level that was larger than a basketball court but smaller than a football field. The footings and walls on which he was working extended around the perimeter of the hole. According to plaintiff's deposition testimony, at about 6:30 P.M. on the date of the accident, he was standing on the ground at the bottom of the excavated hole on a 4 to 6-inch wide dirt ledge between a concrete footing and an adjacent elevator pit, which was 5 to 6 feet deep. Plaintiff was taking measurements when he felt the ground go out beneath him causing him to fall into the pit. Although he landed on his feet, his elbow struck the ledge causing injury. Plaintiff described the pit opening as about the same size as a pool table.
Following discovery, defendants moved for summary judgment seeking dismissal of plaintiff's causes of action premised upon violations of Labor Law § 240 (1) and § 241 (6). Plaintiff opposed the motion and cross-moved for partial summary judgment on the same claims. Supreme Court granted defendants' motion dismissing the complaint and denied plaintiff's cross motion, prompting this appeal.
The first issue we consider is whether plaintiff's work subjected him to a "special" elevation-related hazard, "the sort of risk which [Labor Law § ] 240 (1) was intended to obviate" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 ). Plaintiff argues that he was working on "an elevated sub-level" within the excavated hole and, therefore, his accident is covered under Labor Law § 240 (1). We disagree. This Court has noted that " he fact that levels or floors may exist below the work surface does not, by itself, compel the conclusion that the work surface is an elevated one under [Labor Law § 240 (1)]" (D'Egidio v Frontier Ins. Co., 270 AD2d 763, 765 , lv denied 95 NY2d 765 ). Here, the work which plaintiff was completing on the foundation did not take place at an elevation. He did not require the use of one of the devices contemplated by Labor Law § 240 (1) in order to safely perform his tasks (see id. at 765). Our decisions in Tooher v Willets Point Contr. Corp. (213 AD2d 856 ) and De Long v State St. Assoc. (211 AD2d 891 ) are distinguishable because, in each instance, the plaintiff's injury resulted from work which was required to be performed "at the upper elevation differential" (D'Egidio v Frontier Ins. Co., supra at 765). We conclude that plaintiff's "mere proximity to an elevation differential, alone, is insufficient to trigger the protection of Labor Law § 240 (1)" (id. at 766; see Rocovich v Consolidated Edison Co., supra at 514-515; Paolangeli v Cornell Univ., 296 AD2d 691, 692 ; Barrett v Ellenville Natl. Bank, 255 AD2d 473, 474 ). In our view, plaintiff's injury did not result from a special elevation-related hazard under Labor Law § 240 (1), but rather from the usual
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