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

1252
CA 13-00824
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


JERAD M. ZARNOCH,
PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ROBERT W. LUCKINA, INDIVIDUALLY AND DOING
BUSINESS AS ROB LUCKINA CONSTRUCTION,
DEFENDANT-APPELLANT-RESPONDENT.


ROSSI AND MURNANE, NEW YORK MILLS (VINCENT J. ROSSI, JR., OF COUNSEL),
FOR DEFENDANT-APPELLANT-RESPONDENT.

EDWARD C. COSGROVE, BUFFALO, FOR PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Oneida County (Norman I. Siegel, A.J.), entered August 14, 2012 in a
personal injury action. The order, inter alia, granted the motion of
plaintiff for partial summary judgment on liability pursuant to Labor
Law § 240 (1) on the condition that, at trial, plaintiff was not
determined to be a special employee of defendant, and granted that
part of defendant’s cross motion for summary judgment dismissing the
complaint with respect to the Labor Law § 241 (6) cause of action.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action seeking damages for injuries he allegedly sustained
while assisting defendant in raising an 18-by-18-foot exterior wall as
part of the construction of a single-family residence. Plaintiff was
an employee of the general contractor, and defendant was the framing
subcontractor. Instead of using a crane, wall jack, or similar piece
of equipment, defendant, plaintiff, and four other men began to raise
the wall by hand. After they had lifted the edge of the wall above
their heads, the men began to “walk the wall up.” When the wall was
at a 35-to-40-degree angle from the ground, defendant determined that
it was too heavy to continue to raise and instructed the men to lower
the wall. According to plaintiff, he was injured when the wall fell
on him as the men attempted to lower it. Plaintiff subsequently moved
for partial summary judgment on liability pursuant to Labor Law § 240
(1), and defendant cross-moved for summary judgment dismissing the
complaint or, alternatively, for leave to amend the answer pursuant to
CPLR 3025 (b) asserting as an affirmative defense that plaintiff was
his special employee. Supreme Court granted plaintiff’s motion on the
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                                                         CA 13-00824

condition that it was determined at trial that plaintiff was not
“defendant’s special employee at the time of the accident,” and
granted that part of defendant’s cross motion for summary judgment
dismissing the Labor Law § 241 (6) cause of action. In addition, the
court granted defendant’s alternative request for relief, i.e., leave
to amend the answer. Defendant appeals, and plaintiff cross-appeals.
We affirm.

     Contrary to defendant’s contention, we conclude that the court
properly granted plaintiff’s motion. Plaintiff met his initial burden
by establishing that he “suffered harm that ‘flow[ed] directly from
the application of the force of gravity’ ” to the wall that struck him
(Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7), and that
his injury was “ ‘the direct consequence of [defendant’s] failure to
provide adequate protection against’ ” the gravity-related accident
(DiPalma v State of New York, 90 AD3d 1659, 1660, quoting Runner v New
York Stock Exch., Inc., 13 NY3d 599, 603; see Wilinski, 18 NY3d at 6;
McCallister v 200 Park, L.P., 92 AD3d 927, 928-929), and defendant
failed to raise an issue of fact (see generally Zuckerman v City of
New York, 49 NY2d 557, 562). We reject defendant’s contention that
the elevation differential was de minimis. Although the wall was at
only a 30-degree angle from the ground when it fell on plaintiff, that
elevation differential “cannot be viewed as de minimis, particularly
given the weight of the [wall] and the amount of force it was capable
of generating, even over the course of a relatively short descent”
(Runner, 13 NY3d at 605; see Wilinski, 18 NY3d at 10; DiPalma, 90 AD3d
at 1660).

     We reject defendant’s further contention that the court erred in
denying those parts of his cross motion seeking summary judgment
dismissing the causes of action for common-law negligence and for the
violation of Labor Law § 200. Contrary to defendant’s contention, the
hazard of being injured while lifting an 18-by-18-foot wall is not an
“open and obvious hazard inherent in the . . . work” of a construction
worker (Landahl v City of Buffalo, 103 AD3d 1129, 1131 [emphasis
omitted]). Defendant’s further contentions that plaintiff assumed the
risk of lifting the wall and that lifting the wall was a superseding
cause of plaintiff’s injury are similarly without merit.

     Finally, contrary to plaintiff’s contention, the court properly
granted defendant’s cross motion insofar as it sought leave to amend
the answer. “ ‘Generally, [l]eave to amend a pleading should be
freely granted in the absence of prejudice to the nonmoving party
where the amendment is not patently lacking in merit . . . , and the
decision whether to grant leave to amend . . . is committed to the
sound discretion of the court’ ” (Palaszynski v Mattice, 78 AD3d 1528,
1528; see CPLR 3025 [b]). Here, plaintiff failed to establish that he
will be prejudiced by the proposed amendment, particularly in view of
the fact that discovery has not been completed (see A.W. v County of
Oneida, 34 AD3d 1236, 1238). Furthermore, the proposed amendment is
“not patently lacking in merit” (id.; see Landers v CSX Transp., Inc.,
70 AD3d 1326, 1327).
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                                              CA 13-00824




Entered:   December 27, 2013         Frances E. Cafarell
                                     Clerk of the Court
