        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

193
CA 14-01267
PRESENT: PERADOTTO, J.P., CARNI, SCONIERS, AND WHALEN, JJ.


DANIEL CARR AND SUSAN CARR,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

MCHUGH PAINTING CO., INC., DEFENDANT-APPELLANT,
ET AL., DEFENDANT.


GOLDBERG SEGALLA LLP, BUFFALO (MARK P. DONOHUE OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BERNHARDI & LUKASIK LAW OFFICES, BUFFALO (DEAN P. SMITH OF COUNSEL),
FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Shirley
Troutman, J.), entered May 27, 2014. The order, inter alia, denied
the motion of defendant McHugh Painting Co., Inc. for summary judgment
dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting in part the motion of
defendant McHugh Painting Co., Inc., and dismissing the Labor Law §§
240 (1) and 241 (6) claims against it, and denying the cross motion in
its entirety, and as modified the order is affirmed without costs.

     Memorandum: Plaintiffs commenced this Labor Law and common-law
negligence action seeking damages for injuries sustained by Daniel
Carr (plaintiff) while he was installing a door on a single-family
residence that was under renovation. Plaintiff, a carpenter, was
employed by a subcontractor retained by McHugh Painting Co., Inc.
(defendant), the general contractor, which had been hired to perform
exterior renovation work on the residence. The accident occurred
while plaintiff and another worker were installing a door in the
second-floor master bedroom of the residence. Plaintiff and the
worker were standing on a raised scissor lift, which was positioned at
a distance of approximately 20 to 24 inches away from the opening to
the bedroom. The gap existed because there were large slate steps at
ground level, which prevented the scissor lift from being positioned
closer to the residence. Plaintiff and his coworker lifted the door
and were maneuvering it across the gap when plaintiff felt a “twinge”
or “pop” in his lower back. Supreme Court denied defendant’s motion
for summary judgment dismissing the complaint, and granted plaintiffs’
cross motion insofar as it sought partial summary judgment on the
issue of liability under Labor Law § 240 (1). The court also granted
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                                                         CA 14-01267

that part of plaintiffs’ cross motion for leave to amend their
response to defendant’s interrogatories to allege an additional
Industrial Code violation in support of their Labor Law § 241 (6)
claim.

     We reject defendant’s contention that the court erred in denying
those parts of its motion seeking summary judgment dismissing the
Labor Law § 200 claim and common-law negligence cause of action.
“Labor Law § 200 is a codification of the common-law duty imposed upon
an owner or general contractor to provide employees with a safe place
to work” (Anderson v Bush Indus., 280 AD2d 949, 950; see Lombardi v
Stout, 80 NY2d 290, 294; Jock v Fien, 80 NY2d 965, 967). The duty
does not, however, “extend to ‘hazards which are part of or inherent
in the very work which the contractor is to perform’ ” (Anderson, 280
AD2d at 950, quoting Gasper v Ford Motor Co., 13 NY2d 104, 110; see
Landahl v City of Buffalo, 103 AD3d 1129, 1131). Here, plaintiff’s
accident resulted from the manner in which the work was performed, and
it is undisputed that defendant had the authority to supervise and
control the methods and manner of plaintiff’s work, and that it in
fact exercised such supervisory control (see Comes v New York State
Elec. & Gas Corp., 82 NY2d 876, 877). Contrary to defendant’s
contention, we conclude that defendant failed to establish as a matter
of law that the risk of injury owing to moving a heavy door across a
two-foot gap while at an elevated height with the assistance of a
single worker was “inherent in plaintiff’s work” (Vega v Restani
Constr. Corp., 18 NY3d 499, 505; see Zarnoch v Luckina, 112 AD3d 1336,
1338). We agree with defendant, however, that the court erred in
denying that part of its motion and granting that part of plaintiffs’
cross motion with respect to the Labor Law § 240 (1) claim, and we
therefore modify the order accordingly. “The 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 NY2d 914, 915-916,
quoting Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501; see
Melo v Consolidated Edison Co. of N.Y., 92 NY2d 909, 911). Rather,
the statute “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, 81 at 501; see Runner v New York Stock Exch., Inc., 13 NY3d
599, 603). Here, plaintiff injured his back while maneuvering a heavy
door across a lateral gap; the door did not fall or descend even a de
minimis distance owing to the application of the force of gravity upon
it (see Hasty v Solvay Mill Ltd. Partnership, 306 AD2d 892, 893; cf.
Runner, 13 NY3d at 605; Kollbeck v 417 FS Realty, 4 AD3d 314, 314).
Although “the injured plaintiff’s back injury was tangentially related
to the effects of gravity upon” the door he was lifting, “it was not
caused by the limited type of elevation-related hazards encompassed by
Labor Law § 240 (1)” (Aloi v Structure-Tone, Inc., 2 AD3d 375, 376;
see Hasty, 306 AD2d at 893). We thus conclude that the hazard at
issue here, i.e., lifting or carrying a heavy object across a lateral
gap, even while positioned at a height, is a “routine workplace
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                                                         CA 14-01267

risk[]” of a construction site and not a “pronounced risk[] arising
from construction work site elevation differentials” (Runner, 13 NY3d
at 603; see Hasty, 306 AD2d at 893).

     We also agree with defendant that the court erred in granting
that part of plaintiffs’ cross motion seeking leave to amend their
response to defendant’s interrogatories to allege a violation of 12
NYCRR 23-9.6 (e) (1), and we therefore further modify the order
accordingly. “While it is well settled that leave to amend shall be
freely given in the absence of prejudice to the opponent . . . ,
permission to amend should be denied where the proposed amendment
clearly lacks merit” (Perrini v City of New York, 262 AD2d 541, 542),
and that is the case here. The Industrial Code regulation at issue is
“factually inapplicable to the circumstances surrounding the happening
of the accident and thus do[es] not support a [claim under] Labor Law
§ 241 (6)” (Wilke v Communications Constr. Group, 274 AD2d 473, 474;
see Wilson v Niagara Univ., 43 AD3d 1292, 1293). Inasmuch as
plaintiffs’ remaining claimed violations of the Industrial Code were
dismissed by stipulation of the parties, we further modify the order
by dismissing the Labor Law § 241 (6) claim against defendant in its
entirety.




Entered:   March 27, 2015                       Frances E. Cafarell
                                                Clerk of the Court
