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Height Differential Need Only Be More than “De Minimis”

In reversing the trial court and granting summary judgment to the plaintiff, the First Department noted that a “risk arising from a significant elevation differential” within the meaning of Labor Law 240(1) need only be based on a “height differential” that is more than “de minimis:”

While the record did not specify the height, the uncontroverted evidence shows that the steel beams fell a short distance from the top of the A-frame cart to plaintiff’s leg. Given the beams’ total weight of 1,000 pounds and the force they were able to generate during their descent, the height differential was not de minimis (see McCallister v 200 Park, L.P., 92 AD3d 927, 928-929 [2d Dept 2012] [elevation differential was within the scope of the scaffold law when a scaffold on wheels fell on the plaintiff who was at the same level as the scaffold, and it traveled a short distance]; Kempisty v 246 Spring Street, LLC, 92 AD3d 474, 474 [1st Dept 2012] [an elevation differential cannot be considered de minimis when the weight of the object being hoisted is capable of generating an extreme amount of force, even though it only traveled a short distance]; see also Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 10 [2011] [recovery was permitted under the scaffold law when metal vertical pipes, on the same level as the plaintiff, toppled over on him]; Runner v New York Stock Exch., Inc., 13 NY3d 599 [2009]). Marrero v 2075 Holding Co, LLC, 2013 NY Slip Op 03160, 1st Dept, 5-2-13​

 

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