Ames v. Norstar Building Corp.

Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), entered May 5, 2004. The order, among other things, granted that part of defendants’ motion for summary judgment dismissing the Labor Law § 240 (1) claim and denied plaintiffs’ cross motion for partial summary judgment on the issue of liability under Labor Law § 240 (1).

It is hereby ordered that the order so appealed from be and the same hereby is affirmed without costs.

Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by Leigh Ames (plaintiff) while entering a building under construction from which he was to remove debris. The threshold of the door to the building was approximately chest high and no stairs, ladder or other device to assist plaintiff in gaining access to the building was provided. Contrary to the contention of plaintiffs, Supreme Court properly granted that part of defendants’ motion for summary judgment dismissing the Labor Law § 240 (1) claim. Section 240 (1) applies to situations entailing risks due to the elevation at which the task must be performed or at which materials must be positioned and situations that entail hazards directly related to the effects of gravity where protective devices are needed “either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]; see also Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]; Paul v Ryan Homes, 5 AD3d 58, 60 [2004]). Although some of the devices enumerated in section 240 (1) are for the use or “protection of persons in gaining access to . . . sites where elevation poses a risk” (Rocovich, 78 NY2d at 514), plaintiffs fall from the threshold of the doorway is not the type of accident covered by section 240 (1). We reach that conclusion because, under the circumstances of this case, the first floor of the house is not an elevated work site (cf. Griffin v MWF Dev. Corp., 273 AD2d 907, 907-908 [2000]). “[A] work site is ‘elevated’ within the meaning of the statute where the required work itself must be performed at an elevation, i.e., at the upper elevation differential, such that one of the devices enumerated in the statute will safely allow the worker to perform the task” (D’Egidio v Frontier Ins. Co., 270 AD2d 763, 765 [2000], lv denied 95 NY2d 765 [2000]). The bed of a truck is not an elevated work site, so that workers who fall while trying to climb into the truck are not entitled to relief under Labor Law § 240 (1) (see Toefer v Long Is. R.R., 4 NY3d 399, 408 [2005]; Piccolo v St. John’s Home for the Aging, 11 AD3d 884, 885 [2004]; see also Plump v Wyoming County, 298 AD2d 886, 886-887 [2002]; Tillman v Triou’s Custom Homes, 253 AD2d 254, 257 [1999]). The reasoning of those cases is applicable here.

Contrary to the further contention of defendants, we conclude that, even if plaintiff had intended to transport loads of material from the building to his truck instead of throwing the debris on the ground and then loading his truck, any device placed between the doorway and the ground would have served as a passageway to transport materials and thus Labor Law § 240 (1) would not have applied (see Paul, 5 AD3d at 60-61).

Defendants did not cross-appeal from that part of the order denying that part of their motion seeking summary judgment dismissing plaintiffs’ Labor Law § 200 and common-law negligence claims. While we have the power pursuant to CPLR 3212 (b) to grant summary judgment to a nonmoving party where the issue was presented by the motion (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]), defendants here moved unsuccessfully for the relief now sought. In the absence of a cross appeal, we cannot reach the issue (see Matijiw v New York Cent. Mut. Fire Ins. Co., 292 AD2d 865, 866 [2002]).

All concur except Gorski and Lawton, JJ., who dissent in part and vote to modify in accordance with the following memorandum.