Wensley v. Argonox Construction Corp.

White, J. (concurring in part and dissenting in part).

Al*826though we concur with the majority that plaintiffs claim based on a violation of Labor Law § 241 (6) should be dismissed, we disagree with the finding that Labor Law § 240 (1) is applicable to the facts of this case. In this instance plaintiff, while removing a portion of an old roof, sustained injuries to his right arm when he attempted to hold onto a section of the roofing as it fell from his grasp to the ground below. Here, the injuries sustained by plaintiff did not result from either a fall from an elevated height or being struck by an object falling from an elevated site and thus did not result from an elevated-related risk within the meaning of the statute (see, Allen v Hodorowski & DeSantis Bldg. Contrs., 220 AD2d 959; White v Dorose Holding, 216 AD2d 290, lv denied 87 NY2d 806; Kelleher v Power Auth., 211 AD2d 918).

Although we acknowledge that the statute is to be construed liberally, under the holdings of Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494) and Rocovich v Consolidated Edison Co. (78 NY2d 509), we find that this injury, although connected in a tangential way to the effects of gravity, is not an elevated-related risk of the type intended to be covered by Labor Law 240 (1).

Therefore, we would dismiss plaintiffs second cause of action.