Ricottone v. PSEG Long Island, LLC

Buttafuoco & Associates, PLLC, Woodbury, NY (Ellen Buchholz and Scott Szczefny of counsel), for appellant.

Zaklukiewicz, Puzo & Morrissey, Islip Terrace, NY (Joseph M. Puzo of counsel), for respondents.

FRANCESCA E. CONNOLLY, J.P., ANGELA G. IANNACCI, PAUL WOOTEN, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an amended order of the Supreme Court, Suffolk County (Linda J. Kevins, J.), dated March 17, 2021. The amended order granted the defendants' cross-motion for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200, 240(1), and 241(6), and denied the plaintiff's motion for summary judgment on the issue of liability on those causes of action.

ORDERED that the amended order is modified, on the law, by deleting the provisions thereof granting those branches of the defendants' cross-motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 241(6), and substituting therefor provisions denying those branches of the cross-motion; as so modified, the amended order is affirmed, without costs or disbursements.

On November 21, 2016, the plaintiff, an employee of nonparty Verizon Communications (hereinafter Verizon), allegedly was injured when he dove underneath his truck in response to an "explosion," which occurred during the hoisting of a portion of a damaged utility pole by employees for the defendants. The plaintiff was part of a work crew for Verizon that had been dispatched, along with crews for the defendants, to replace the utility pole after it had been struck and damaged by a vehicle. At the time of the incident, the plaintiff was standing approximately 150 feet away from the utility pole, and was waiting for the defendants' employees to remove the upper half of the pole, which had snapped off the base and had energized power lines attached to it. The plaintiff and his crew were waiting to install a new utility pole after the completion of the defendants' work.

In December 2016, the plaintiff commenced this action against the defendants to recover damages for personal injuries, alleging, inter alia, violations of Labor Law §§ 240(1), 241(6), and 200. Thereafter, the plaintiff moved for summary judgment on the issue of liability on the Labor Law causes of action, and the defendants cross-moved for summary judgment dismissing those causes of action. In an amended order dated March 17, 2021, the Supreme Court granted the defendants' cross-motion and denied the plaintiff's motion. The plaintiff appeals.

"Labor Law § 240(1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder 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" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 [emphasis omitted]; see Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 604; Bonkoski v Condos Bros. Constr. Corp., 216 A.D.3d 612, 615). However, "[t]he extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and do 'not encompass any and all perils that may be connected in some tangential way with the effects of gravity'" (Nieves v Five Boro A.C. & Refrig. Corp., 93 N.Y.2d 914, 915-916 [emphasis omitted], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d at 501; see Cruz v 451 Lexington Realty, LLC, 218 A.D.3d 733).

Here, the defendants established, prima facie, that the plaintiff's injuries did not flow directly from the application of the force of gravity to an object or person, and thus, were not caused by an elevation-related or gravity-related risk within the scope of Labor Law § 240(1) (see Misseritti v Mark IV Constr. Co., 86 N.Y.2d 487, 489; Clark v FC Yonkers Assoc., LLC, 172 A.D.3d 1159, 1161). The defendants submitted, inter alia, a transcript of the plaintiff's deposition testimony, wherein he...