LORETTA MISSERITTI, AS ADMINISTRATRIX &C., APPELLANT, v. MARK IV CONSTRUCTION
CO., INC., RESPONDENT, v. B.A. MASONS, INC., THIRD-PARTY RESPONDENT.
86 N.Y.2d 487, 657 N.E.2d 1318, 634 N.Y.S.2d 35
October 31, 1995
4 No. 219 (1995 NY Int. 236)
Decided October 31, 1995
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Alfred J. Heilman, for Appellant.
Norman E.S. Greene, for Respondent.
David B. Mahoney, for third-party Respondent.
CIPARICK, J.:
The issue presented on this appeal is whether plaintiff was entitled
to summary judgment on her Labor Law § 240(1) cause of action based
upon the absence of any "bracing" on the fire wall that collapsed at
the construction site where her husband was working. We conclude that
the collapse of the fire wall is the type of "ordinary and usual"
peril a worker is commonly exposed to at a construction site and not
an elevation-related risk subject to the safeguards prescribed by
Labor Law § 240(1).
According to the complaint, plaintiff's decedent was a mason employed
by third-party defendant B.A. Masons, Inc. (Masons), the subcontractor
hired by defendant and third-party plaintiff, Mark IV Construction
Co., Inc. (Mark IV), to perform masonry work for certain townhouses
being constructed in Monroe County. On February 22, 1988, the decedent
was severely injured when a completed, concrete-block fire wall
collapsed. It is alleged that this incident was the sole cause of the
decedent's demise two years later on May 28, 1990. Plaintiff, as
administratrix of her husband's estate, commenced this action against
Mark IV alleging, among other things, that her husband's injuries and
damages were occasioned by defendant's failure to comply with its
nondelegable duty under Labor Law § 240(1) to furnish or erect
"reasonably safe scaffolding, braces, and other devices . . . so
constructed, placed and operated as to give proper protection to
(decedent) in the course of his employment." Plaintiff thereafter
moved for partial summary judgment on the Labor Law § 240(1) cause of
action. Mark IV cross-moved inter alia for summary judgment dismissing
plaintiff's cause of action alleging a violation of Labor Law
SNIPPETS:
LORETTA MISSERITTI, AS ADMINISTRATRIX &C., APPELLANT, v. MARK IV CONSTRUCTION CO., INC.,
This opinion is uncorrected and subject to revision before publication in the New York
David B. Mahoney, for third-party Respondent.
The issue presented on this appeal is whether plaintiff was entitled to summary judgment on
We conclude that the collapse of the fire wall is the type of "ordinary and usual" peril a
According to the complaint, plaintiff's decedent was a mason employed by third-party
On February 22, 1988, the decedent was severely injured when a completed, concrete-block fire
Plaintiff, as administratrix of her husband's estate, commenced this action against Mark IV
placed and operated as to give proper protection to in the course of his employment."
The Appellate Division modified, with two Justices dissenting, to the extent of granting
Plaintiff appeals as of right pursuant to CPLR 5601.
The import of Labor Law § 240is undeniably salutary, requiring owners and contractors to
or contractor liable for an injured worker's damages.
We have expressly held that "Labor Law § 240was aimed only at elevation-related hazards and
It is in recognition of the exceptionally dangerous conditions posed by elevation
Indeed, the type of protective devices enumerated by section 240predominantly concern those
There is no showing that the decedent was working at an elevated level at the time of his
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine concur.
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