Wescott v. Shear

Harvey, J. (dissenting).

We respectfully dissent.

In our view, the stairway upon which plaintiff fell cannot be deemed to be one of the devices enumerated in Labor Law § 240 (1) and was not a tool used in the performance of plaintiff’s work (see, Ryan v Morse Diesel, 98 AD2d 615). Instead, it was a passageway from one place of work to another, and an accident arising on such a passageway does not lie within the purview of Labor Law § 240 (1) (see, supra, at 615-616; see also, Barnes v Park Cong. Church, 145 AD2d 889, 890-891, appeal dismissed 74 NY2d 650; cf., Fiore v MCT Constr. Corp., 112 AD2d 265). Although the majority make much of the fact that the stairway in question was a temporary and removable one instead of one permanently installed, we believe no distinction should be made. Whether temporary or permanent, the subject stairway was actually being used as a passageway and was not, as argued by plaintiffs, functionally identical to a ladder (cf., McGurk v Turner Constr. Co., 127 AD2d 526, 529).

Accordingly, we would find, based on the undisputed facts, that plaintiffs are not entitled to relief pursuant to Labor Law § 240 (1) as a matter of law and that this cause of action must be dismissed. This result would not have deprived plaintiffs of all avenues of potential recovery since the other causes of *927action in the complaint alleging negligence and violations of Labor Law §§ 241 and 241-a would still stand.