Justice Debra Silber
Defendants and third-party plaintiffs and defendants moved for dismissal of this wrongful death action in which plaintiff administratrix asserted Labor Law violations. A falling crate killed Toney while on a job site, and the complaint alleged the crates were unsecured and no proper safety gear was provided. Defendants asserted Labor Law §240(1) was inapplicable as there was no elevation related risk, claiming any height differential was de minimis. The court disagreed, finding “placing 4,000 pounds of material in motion by tilting, with no equipment to secure it, was clearly creating a risk from the effects of gravity.” Further, it stated an elevation differential could not be viewed as de minimis when the weight of the object was also considered, including the amount of force it was capable of generating, even over the course of a relatively short descent. As such, the court concluded that construction manager Lee Remodeling and subcontractor M&M Metals failed to meet their prima facie burden of establishing the subject crates did not present an elevation-related risk inherent in the work being performed, or that §240(1) was inapplicable, denying dismissal, and granting plaintiff summary judgment on the §240(1) claim.
