Strangio v. Sevenson Environmental Services, Inc.

*1893Appeal from an order of the Supreme Court, Niagara County (Ralph A. Bordello, III, J.), entered August 14, 2009 in a personal injury action. The order, insofar as appealed from, granted those parts of the motions of defendants/third-party plaintiffs and third-party defendant for summary judgment dismissing the Labor Law § 240 (1) claim and the Labor Law § 241 (6) claim insofar as it is based on the alleged violation of 12 NYCRR 23-6.1 (j)-

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

Memorandum: Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained when he was struck in the face by the handle of a hand-operated hoisting mechanism while he was raising a scaffold. As limited by his brief, plaintiff appeals from those parts of an order granting the respective motions of defendants/third-party plaintiffs (defendants) and third-party defendant, Thomas Johnson, Inc. (TJI), for summary judgment dismissing the Labor Law § 240 (1) claim as well as the Labor Law § 241 (6) claim insofar as it is based on the alleged violation of 12 NYCRR 23-6.1 (j). We affirm.

With respect to the Labor Law § 240 (1) claim, defendants and TJI established their entitlement to judgment as a matter of law, and plaintiff failed-to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). As relevant to this case, the proper inquiry under Labor Law § 240 (1) is whether “ ‘the scaffold ... or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person’ ” (Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009], quoting Ross v Curtis-Palmer HydroElec. Co., 81 NY2d 494, 501 [1993]). The fact that an accident is “connected in some tangential way with the effects of gravity” is insufficient to bring the injured worker within the protection of Labor Law § 240 (1) (Ross, 81 NY2d at 501; see Narducci v Manhasset Bay Assoc., 96 NY2d 259, 270 [2001]; Melo v Consolidated Edison Co. of N.Y., 92 NY2d 909, 912 [1998]). Here, the protective device, i.e., the scaffold, adequately shielded plaintiff and his coworkers on the platform from falling to the ground or sustaining other injuries as a result of the unchecked descent of the scaffold. “The mere fact that the force of gravity acted upon the hoisting mechanism is insufficient to establish a valid Labor Law § 240 (1) claim inasmuch as plaintiffs injury *1894did not result from an elevation-related risk as contemplated by the statute” (O’Donnell v Buffalo-DS Assoc., LLC, 67 AD3d 1421, 1422-1423 [2009], lv denied 14 NY3d 704 [2010]).

With respect to the Labor Law § 241 (6) claim insofar as it is based on the alleged violation of 12 NYCRR 23-6.1 (j)> defendants and TJI met their initial burdens on their respective motions by establishing that the regulation applies to material hoists and thus is inapplicable to the accident, and plaintiff failed to raise a triable issue of fact in opposition (see generally Zuckerman, 49 NY2d at 562). Scaffolding is not “material hoisting equipment” within the meaning of that regulation (12 NYCRR 23-6.1 [b]) and, indeed, scaffolding is governed by a subpart 23-5 of the regulations, while material hoisting equipment is governed by subpart 23-6.

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