(dissenting). The defendant Port of New York Authority was the owner of, and the defendant Tishman Realty and Construction Co. was the general contractor for, the World Trade Center Building. Plaintiff was an employee of Otis Elevator Company, a Subcontractor. At the time of the accident he was working in an elevator shaft. The shaft had been planked over and plaintiff was kneeling on the planking. A falling object from above hit and broke one of the planks and plaintiff fell from the planking down the shaft, a distance of about 30 feet or 3 stories. There was no planking in the shaft other than the platform on which plaintiff was working. The court held that the absence of any planking covering the shaft opening on any floor beneath the floor on which plaintiff was working was a violation of section 241-a of the Labor Law and directed the jury to find a verdict against the above-described defendants on the issue of liability. A cause of action against a third defendant alleged to have dropped the object which broke the plank was allowed to be discontinued without prejudice.
It is quite clear and undisputed that the sole ground upon which liability was determined was tbp absence of planking beneath the platform on which plaintiff was working. Nor is it disputed that the platform upon which plaintiff was working consisted of sound planking at least two inches thick laid across the shaft opening. The issue therefore is, does section 241-a of the Labor Law require a shaft covering below a shaft covering on which men are working. I submit that neither in the wording of the section itself, nor in the interpretation by the courts, nor, *343in the light of the hazard that the section was designed to obviate, is there any such requirement.
The statute, stripped of verbiage not applicable to the exact situation, reads: “ Any men. working in * * * elevator shaftways * * * of buildings in course of construction * * * shall be protected by sound planking at least two inches thick laid across the opening at levels not more than * * * one story below such men There was such a planking and it was not more than one story below where the men were working. In fact it was their immediate support. The literal wording of the statute was complied with exactly. As to interpretation, no case has been called to our attention where liability has been imposed where the plaintiff was actually working on planking which conformed to the statute. And in the sole ease where the same situation was involved this court held there was no statutory violation (Gorman v. Grand Central Bldg., 29 A D 2d 849, affd. 22 NY 2d 821).
Furthermore, the logic of the' situation makes this the only possible interpretation. Obviously the statute recognizes the the danger to men working in or about shaftways, stairwells and like openings where they are liable to fall. It is designed to minimize the effect of such falls. If there is no opening the hazard is not presented. Where the shaftway is in effect closed by the planking the situation is exactly the same as if the men were employed on an unbroken surface. Protection is afforded by the specification of the planking, required to be installed. Plaintiff in his argument concedes that if he had climbed one foot above the shaftway covering, the existing planking would have been all that the statute required, but because he was in a safer place, namely, on the planking itself, an additional stage was mandated. Such is not my interpretation.
I would reverse the judgment and remand for a new trial on the issue of liability.
McGivern, P. J., and Murphy, J., concur with Capozzoli, J.; Steuer, J., dissents in an opinion.
Judgment, Supreme Court, New York County, entered on March 22, 1973, affirmed. Respondents shall recover of appellants $60 costs and disbursements of this appeal