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PLAINTIFF, AN HVAC WORKER, LEANED ON A PIPE RAILING AS HE WAITED FOR AN ELEVATOR TO TAKE HIM TO THE FLOOR WHERE HIS WORK SITE WAS; THE PIPE RAILING GAVE WAY AND PLAINTFF FELL FOUR OR FIVE FEET TO A CONCRETE SLAB; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was at the construction site waiting for an elevator to take him to the floor where he was working (HVAC work) when he leaned back on a pipe railing which gave way and he fell four or five feet to a concrete slab:

… [T]he safety devices prescribed by Labor Law § 240(1) “are for the use or protection of persons in gaining access to or working at sites where elevation poses a risk” … .

… [T]he plaintiff established that he needed to use the elevator, one of two at opposite ends of the construction site, to gain access to the various floors where he would be working throughout the day. Thus, accessing and waiting at the loading dock for the elevator, even before working hours began, was necessary to the plaintiff’s work. We therefore conclude that the loading dock from which the plaintiff fell is included under “those parts, which must be accessed by a worker to do his or her job” … . Under the circumstances of this case, the fact that the plaintiff was not engaged in HVAC work at the moment of his accident does not preclude the application of Labor Law § 240(1). Crutch v 421 Kent Dev., LLC, 2021 NY Slip Op 01751, Second Dept 3-24-21

 

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EVEN THOUGH PLAINTIFF MAY HAVE ACCEPTED DEFECTIVE GOODS WITHIN THE MEANING OF... THE FAILURE TO ALLEGE SPECIAL DAMAGES WITH PARTICULARITY REQUIRED THE DISMISSAL...