

Joseph v City of New York (2016 NY Slip Op 06649)





Joseph v City of New York


2016 NY Slip Op 06649


Decided on October 11, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on October 11, 2016

Mazzarelli, J.P., Friedman, Andrias, Webber, Gesmer, JJ.


1689 153735/12

[*1]Lindy Joseph, et al., Plaintiffs-Respondents,
vThe City of New York, et al., Defendants-Appellants.


Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellants.
Pollack Pollack Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondents.

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered May 8, 2015, which, insofar as appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the Labor Law § 240(1) claim, and granted plaintiffs' cross motion for partial summary judgment on the issue of liability on that claim, unanimously reversed, on the law, without costs, the motion granted, the cross motion denied, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Plaintiff Lindy Joseph was struck by a pipe while it was being flushed clean with a highly pressurized mixture of air, water, and a rubber "rabbit" device. The movement of this mixture through the pipe failed to bring the mechanism of plaintiff's injury within the ambit of section 240(1) because it did not involve "the direct consequence of the application of the force of gravity to an object" (Gasques v State of New York, 15 NY3d 869, 870 [2010]). The mixture in the pipe did not move through the exercise of the force of gravity, but was rather intentionally propelled through the pipe through the use of high pressure (see Medina v City of New York, 87 AD3d 907, 909 [1st Dept 2011] [subway rail that struck and hit the plaintiff "was propelled by the kinetic energy of the sudden release of tensile stress ... not the result of the effects of gravity"]; see also Smith v New York State Elec. & Gas Corp., 82 NY2d 781 [1993]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 11, 2016
CLERK


