Missico v. Tops Markets, Inc.

May 2, 2003
Versions:305 A.D.2d 1052
758 N.Y.S.2d 890
2003 N.Y. App. Div. LEXIS 4770

—Appeal from an order of Supreme Court, Erie County (Martoche, J.), entered June 5, 2002, which, inter alia, granted plaintiffs’ motion for partial summary judgment on the Labor Law § 240 (1) claim.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Michael Missico (plaintiff) when he fell from a plywood ramp 10 to 12 feet in length that connected a loading dock to a garbage dumpster. The ramp was 4 to 5 feet high at the loading dock and 8 to 10 feet high at the dumpster. The ramp gave way while plaintiff was pushing a wheelbarrow filled with debris up the ramp for disposal in the dumpster. Supreme Court properly granted plaintiffs’ motion for partial summary judgment on the Labor Law § 240 (1) claim and denied the cross motion of Tops Markets, Inc. and Benderson-French Associates, LLC (collectively, defendants) for partial summary judgment dismissing that claim. Contrary to defendants’ contention, plaintiff was subjected to an elevation-related risk because the ramp was a “tool used in the performance of the plaintiff’s work” and was not merely a passageway from one place of work to another (Ryan v Morse Diesel, 98 AD2d 615, 616 [1983]; see McCann v Central Synagogue, 280 AD2d 298 [2001]; Reisch v Amadori Constr. Co., 273 AD2d 855, 856-857 [2000]; Jablonski v Everest Constr. & Trade Corp., *1053264 AD2d 381 [1999]; cf. Straight v McCarthy Bros. Co., 222 AD2d 775 [1995]). Defendants’ reliance on DePuy v Sibley, Lindsay & Curr Co. (225 AD2d 1069, 1070 [1996]) is misplaced. That case involved the removal of objects from the back of a truck and did not involve the extraordinary elevation-related risks envisioned by the statute (see id.).

Contrary to the further contention of defendants, “the task in which [plaintiff] was engaged [was] performed during ‘the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure’ ” (Martinez v City of New York, 93 NY2d 322, 326 [1999]; see Rivera v Squibb Corp., 184 AD2d 239, 240 [1992]) and thus is covered by Labor Law § 240 (1). Present — Pine, J.P., Hurlbutt, Kehoe, Gorski and Hayes, JJ.