Eric Capolino, Respondent, v JUDLAU CONTRACTING, INC., Appellant.
[848 NYS2d 346]
Appellate Division of the Supreme Court of the State of New York, Second Department
November 20, 2007
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denying those branches of the defendant‘s
The plaintiff was employed by JB Electric, a subcontractor hired by the defendant to renovate an elevated subway station. The renovation involved installing conduit piping into the underside of the subway platform. While standing on a hydraulic scissor lift 15 to 20 feet above the ground, the plaintiff and a coworker attempted to secure a 60-pound “mogul condulet” onto a conduit pipe. The lift was not extended fully because its guardrails hit against the conduit pipes. Consequently, the plaintiff and his coworker were holding the pipes and the mogul condulet overhead while trying to secure it. One of the mogul condulets fell off of the pipe, prompting the plaintiff to attempt to catch it in midair, injuring his shoulder.
Contrary to the defendant‘s contention, the plaintiff was engaged in the type of protected activity contemplated by
However, the plaintiff did not establish, as a matter of law, that he was not provided with adequate or appropriate safety devices or protection in order to perform the task to which he was assigned. Accordingly, that branch of his cross motion which was for summary judgment on the
In addition, the Supreme Court erred in denying those branches of the defendant‘s motion which were to dismiss the
