                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: October 20, 2016                    521882
________________________________

WILLIAM WRIGHT,
                     Appellant,
     v

ELLSWORTH PARTNERS, LLC, et al.,
                    Defendants
                    and Third-
                    Party                    MEMORANDUM AND ORDER
                    Plaintiffs-
                    Respondents;

JAG I, LLC,
                    Third-Party
                    Defendant-
                    Respondent.
________________________________


Calendar Date:    September 7, 2016

Before:   Peters, P.J., McCarthy, Garry, Rose and Mulvey, JJ.

                              __________


      Finkelstein & Partners LLP, Newburgh (Lawrence D. Lissauer
of counsel), for appellant.

      Napierski, VanDenburgh, Napierski & O'Connor, LLP, Albany
(Mark J. Dolan of counsel), for defendants and third-party
plaintiffs-respondents.

                              __________



Peters, P.J.

      Appeal from an amended order of the Supreme Court (Muller,
J.), entered May 20, 2015 in Warren County, which, among other
things, granted defendants' motion for summary judgment
dismissing the complaint.
                              -2-                521882

      Plaintiff, an employee of third-party defendant, JAG I,
LLC, sustained a traumatic brain injury and multiple fractures in
an accident at a construction site in the Town of Malta, Saratoga
County. JAG I had been hired by defendant AP Construction, LLC,
the general contractor, to perform concrete and masonry work on
the project, which was located on property owned by defendant
Ellsworth Partners, LLC. On the date of the accident, plaintiff
was instructed by a JAG I supervisor to go to the fourth floor of
the building to assist other JAG I employees in cleaning up the
site. Upon arriving, plaintiff observed his coworkers
dismantling and stacking scaffolding frames. To stack the
scaffolding, JAG I employees fastened one end of a crossed set of
pipes (hereinafter X-brace) to each side of a frame section, with
the other end of each X-brace angling down into the floor and
braced against four 8-inch by 16-inch masonry blocks. Additional
frame sections were then leaned against the fastened scaffolding
frame, much like a row of folding chairs is leaned against a
wall. After approximately 10 to 15 scaffolding frames had been
stacked, the X-brace either slipped or failed, causing the row of
scaffolding to fall forward like "dominos" and strike plaintiff.

      Plaintiff commenced this action alleging violations of
Labor Law §§ 200, 240 (1) and 241 (6), as well as common-law
negligence. After joinder of issue, defendants impleaded JAG I
seeking contractual indemnification. JAG I thereafter moved for
summary judgment dismissing the complaint and the third-party
complaint, and defendants moved for summary judgment dismissing
the complaint or, in the alternative, summary judgment granting
the relief sought in the third-party complaint. Plaintiff
opposed both motions and moved for partial summary judgment on
the issue of liability on his Labor Law § 240 (1) claim. Supreme
Court granted JAG I's motion in its entirety as well as that part
of defendants' motion which sought dismissal of the complaint,
and denied the balance of the requested relief. Plaintiff
appeals.

      We first address plaintiff's Labor Law § 240 (1) claim. To
establish entitlement to recovery under the statute, a plaintiff
must demonstrate that "a failure to provide the required
protection at a construction site [] proximately caused the
                              -3-                521882

injury and that 'the injury sustained is the type of
elevation-related hazard to which the statute applies'" (Oakes v
Wal-Mart Real Estate Bus. Trust, 99 AD3d 31, 34 [2012], quoting
Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7
[2011]; see Runner v New York Stock Exch., Inc., 13 NY3d 599,
603-604 [2009]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d
494, 500-501 [1993]). "[N]ot every object that falls on a
worker[] gives rise to the extraordinary protections of Labor Law
§ 240 (1)" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267
[2001]; see Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658,
663 [2014]), as the protections of the statute "'do not encompass
any and all perils that may be connected in some tangential way
with the effects of gravity'" (Nicometi v Vineyards of Fredonia,
LLC, 25 NY3d 90, 97 [2015], quoting Ross v Curtis-Palmer
Hydro-Elec. Co., 81 NY2d at 501 [emphasis omitted]). Yet,
liability under Labor Law § 240 (1) is not precluded simply
because the falling object and the injured worker are located on
the same level (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp.,
18 NY3d at 7; Oakes v Wal-Mart Real Estate Bus. Trust, 99 AD3d at
38-39). Rather, "'the single decisive question is whether
plaintiff's injuries were the direct consequence of [defendants']
failure to provide adequate protection against a risk arising
from a physically significant elevation differential'" (Wilinski
v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d at 10, quoting
Runner v New York Stock Exch., Inc., 13 NY3d at 603; accord Oakes
v Wal-Mart Real Estate Bus. Trust, 99 AD3d at 37-38; Davis v
Wyeth Pharms., Inc., 86 AD3d 907, 908 [2011]).

      In Oakes v Wal-Mart Real Estate Bus. Trust (99 AD3d 31
[2012]), we discussed the protections afforded by Labor Law § 240
(1) under circumstances where, as here, the falling object and
the injured plaintiff were on the same level. There, a 5½-foot
high steel truss that had been positioned at ground level tipped
and fell onto a worker. Focusing on the fact that "[t]he truss
and plaintiff were both at ground level, and . . . were either
approximately the same height or plaintiff was slightly taller
than the truss," this Court concluded that liability could not be
imposed under Labor Law § 240 (1) because "there was no elevation
differential present here, let alone a 'physically significant
elevation differential'" (id. at 39-40, quoting Runner v New York
                              -4-                521882

Stock Exch., Inc., 13 NY3d at 603). More recently, in Hebbard v
United Health Servs. Hosps., Inc. (135 AD3d 1150, 1151 [2016]),
the plaintiff was injured when a stack of scaffold frames toppled
on him as he attempted to move one. Relying primarily on Oakes,
we concluded that liability could not be imposed under Labor Law
§ 240 because "[t]he frames were about the same height as [the
plaintiff] and . . . were located on the same level as him" –
i.e., there was no elevation differential (id. at 1151). Thus,
consistent with the Court of Appeals' decision in Wilinski v 334
E. 92nd Hous. Dev. Fund Corp. (18 NY3d 1 [2011], supra), Oakes
and Hebbard stand for the proposition that, where the injured
worker and the falling object are located on the same level,
liability under Labor Law § 240 (1) is precluded as a matter of
law where there is no height differential between the falling
object and the worker.

      Here, plaintiff estimated the scaffolding frames to be
about six-feet tall and testified that, as they were being
stacked vertically, the frames were "higher than [him]." Thus,
unlike the facts presented in both Oakes and Hebbard, the
uncontroverted testimony here established the existence of an
elevation differential. Nevertheless, we are unable to glean
from the present record whether plaintiff's injury arose from the
requisite "physically significant elevation differential" (Runner
v New York Stock Exch., Inc., 13 NY3d at 603; accord Wilinski v
334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d at 10). In
determining whether an elevation differential is physically
significant or de minimis, we must consider not only the height
differential itself, but also "the weight of the [falling] object
and the amount of force it was capable of generating, even over
the course of a relatively short descent" (Runner v New York
Stock Exch., Inc., 13 NY3d at 605; accord Wilinski v 334 E. 92nd
Hous. Dev. Fund Corp., 18 NY3d at 10; Christiansen v Bonacio
Constr., Inc., 129 AD3d 1156, 1158 [2015]; Jackson v Heitman
Funds/191 Colonie LLC, 111 AD3d 1208, 1210 [2013]). Critically
absent from the record is any indication as to plaintiff's height
or any other evidence shedding light on the height differential
between plaintiff and the stacked frames at the time they fell.
Further, issues of fact remain with regard to such other relevant
factors as the number of scaffolds stacked in the pile that
                              -5-                521882

collapsed, the weight of each scaffold and the manner in which
the scaffold(s) struck plaintiff. Given these unresolved factual
questions, summary judgment on plaintiff's Labor Law § 240 (1) is
not appropriate (see Mentesana v Bernard Janowitz Constr. Corp.,
44 AD3d 721, 723 [2007]; Kobetitsch v P.M. Maintenance, 308 AD2d
510, 512 [2003]; Amo v Little Rapids Corp., 268 AD2d 712, 714-715
[2000]; see also Ortman v Logsdon, 121 AD3d 1388, 1389-1390
[2014]).

      Turning to plaintiff's remaining claims, "Labor Law § 200
codifies the common-law duty imposed upon owners and general
contractors to maintain a safe work site and, with regard to
injuries resulting from unsafe work practices, there must be a
showing of supervisory control and actual or constructive
knowledge of the unsafe manner of performance" (Barros v Bette &
Cring, LLC, 129 AD3d 1279, 1280 [2015] [internal quotation marks
and citations omitted]; see Christiansen v Bonacio Constr., Inc.,
129 AD3d at 1157). "The retention of general supervisory
control, presence at a work site, or authority to enforce safety
standards is insufficient to establish the control necessary to
impose liability" (Biance v Columbia Washington Ventures, LLC, 12
AD3d 926, 927 [2004] [citations omitted]; see Cook v Orchard Park
Estates, Inc., 73 AD3d 1263, 1264 [2010]; Fassett v Wegmans Food
Mkts., Inc., 66 AD3d 1274, 1276 [2009]). Here, although there
was testimony that a representative of AP Construction would walk
around the job site to assess the progress of the work, the
record confirms that neither Ellsworth nor AP Construction
exercised any direct control over JAG I's employees or the manner
in which their work was performed. Under such circumstances,
plaintiff's Labor Law § 200 and common-law negligence claims were
properly dismissed (see Lombardi v Stout, 80 NY2d 290, 295
[1992]; Fassett v Wegmans Food Mkts., Inc., 66 AD3d at 1276;
Torres v Mazzone Admin. Group, Inc., 46 AD3d 1040, 1041-1042
[2007], lv denied 10 NY3d 706 [2008]; Blysma v County of
Saratoga, 296 AD2d 637, 639 [2002]). We reach the same
conclusion with regard to plaintiff's Labor Law § 241 (6) claim
predicated on an alleged violation of 12 NYCRR 23-1.7 (a) (2), as
that regulation does not apply to areas where employees are
required to work (see Allan v DHL Express [USA], Inc., 99 AD3d
828, 831 [2012]; Griffin v Clinton Green S., LLC, 98 AD3d 41, 49-
                              -6-                  521882

50 [2012]).

      Finally, because plaintiff's Labor Law § 240 (1) claim is
reinstated, the third-party complaint necessarily is reinstated.

     McCarthy, Garry, Rose and Mulvey, JJ., concur.



      ORDERED that the amended order is modified, on the law,
without costs, by reversing so much thereof as (1) granted that
part of third-party defendant's motion for summary judgment
dismissing plaintiff's Labor Law § 240 (1) claim and the third-
party-party complaint, and (2) granted that part of defendants'
motion for summary judgment dismissing plaintiff's Labor Law
§ 240 (1) claim; motions denied to that extent; and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
