(concurring). Plaintiff Cesar Ortega, an employee of a subcontractor on the Second Avenue Subway Tunnel Construction Project, was injured while he was connecting pipes which were to be used in order to pour concrete underground using the “Tremie Concrete” method. In order to perform this work, plaintiff stood on a work platform located eight feet above the ground and contained within a metal cage, also referred to as a tremie rack.
The tremie rack was a considerable, rectangular structure, with its height greater than its width and was estimated to stand as tall as 12 feet high. In addition to housing a work platform, the tremie rack contained vertical slots in which heavy tremie pipes were held, which pipes had a collar at one end and were kept in place by square shaped holders, also referred to as “keepers.” The rack was resting on unsecured wooden planking which was meant to level the gravel surface below, and the tremie pipes, which were estimated to be 10 feet high and weigh 300 pounds each, were all located on one side of the rack.
Plaintiffs accident occurred when, as he was standing on the platform, the collar of a tremie pipe which was being hoisted by a multi-ton rig got caught on a keeper, causing the tremie rack to tip over onto its side and eject plaintiff.
Since the work platform, which functioned as a safety device, failed to protect plaintiff from the foreseeable risk of falling from an elevation, judgment as a matter of law under Labor Law § 240 (1) is warranted (Gordon v Eastern Ry. Supply, 82 *132NY2d 555 [1993]; Cruz v Turner Constr. Co., 279 AD2d 322, 322-323 [2001]). Clearly, expert testimony was not needed to establish that such an injury could occur, given that the tremie rack, inter alia, was taller than it was wide, rested on unsecured planking atop an uneven gravel surface, and was unevenly weighted by the distribution of pipes (see Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140, 148 [1976]; Chafoulias v 240 E. 55th St. Tenants Corp., 141 AD2d 207, 211 [1988]).
Accordingly, I concur in the result reached by the majority. In so doing, there is no need to address the foreseeability issue as the majority does. This is an issue which, in any event, has been the subject of extensive analysis in this Court (see Vasquez v Urbahn Assoc. Inc. 79 AD3d 493 [2010]) and does not need further elucidation here.
Freedman and Manzanet-Daniels, JJ., concur with Acosta, J.; Andrias, J.E, and Sweeny, J., concur in a separate opinion by Sweeny J.
Order, Supreme Court, New York County, entered March 30, 2011, reversed, on the law, without costs, and the motion for partial summary judgment under Labor Law § 240 (1) granted.