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Another Falling Object Case That is Not a Labor Law § 240(1) Matter

July 1, 2013 • Posted By Joseph A. French • Construction Claims, Trial Practice

In a recent decision, the Second Department in Moncayo v. Curtis Partition Corp., 2013 NY Slip Op 03644 reaffirms that not every single case in which a fallen object case strikes a worker leads to a Labor Law §240(1) claim.  In this Queens County case, the plaintiff was allegedly injured while standing on the ground outside a school.  He was struck by a piece of sheetrock that had fallen from the third floor of the school building.  A co-worker had been using a power saw to cut out a piece of sheetrock from the ceiling to facilitate the installation of a grill for the air conditioning system.  A small piece of sheetrock fell from the co-worker’s hand then bounced off a window sill before falling through an empty window frame and striking plaintiff. 

The Supreme Court denied plaintiff’s motion under Labor Law §240 and yet granted the defendant’s cross-motion under Labor Law §240 and §241(6).  In affirming the lower court decision, the court noted with approval that “not every injury caused by a fallen object at a construction site is covered by the extraordinary protections of Labor Law §240(1)”.  Plaintiff must show that when the object fell, it was “being hoisted or secured or require securing for the purposes of the undertaking”.  Plaintiff must also establish that the object fell “because of the absence of inadequacy of a safety device of the kind enumerated in the statute.”  The court went on to explain that the statute does not apply in situations in which a hoisting or secured devise would not be necessary or expected. 

Defendant had established that the sheetrock debris was placed in piles and then bagged.  It was not discarded in pieces through the window openings.  Accordingly, because those small piece of sheetrock were not in the process “of being hoisted or secured and did not require hoisting or securing, the “special protection” of Labor Law §240 was not implicated.  Plaintiff did not raise an issue of triable issue of fact.

Claims under Labor Law §241(6) were also dismissed.  This claim was predicated upon a violation of 12 NYCRR 23-11.7(a) which requires “suitable overhead protection in areas that are ‘normally exposed to falling material or objects”.  Defendant successfully argued that the section was inapplicable to this case because the area “where the accident occurred was not normally exposed to falling material or objects.”  Again, plaintiff failed to raise triable issue of fact.

This case is useful for affirming that not every single matter case involving a falling object at a construction site gives rise to Labor Law §240 claim.  It is gives some guidance in what plaintiff, must establish in a falling object case and what defendant, must examine to overcome the situation and claims.