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NEW YORK COURT OF APPEALS

2008 NY Int. 122


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



2008 NY Slip Op 06736

Decided on September 9, 2008

No. 195 SSM 26

Anthony Quattrocchi, Respondent,

v

F.J. Sciame Construction Co., Inc., Respondent,

F.J. Sciame Construction Co., Inc., (s/h/a F.J. Sciame Construction Corp.) Third-Party Plaintiff- Respondent,

v

Complete Construction Consortium, Inc., Third-Party Defendant- Respondent, United Airconditioning Corp., Third-Party Defendant- Appellant.

Submitted by Joel M. Simon, for third-party appellant.

Submitted by Scott N. Singer, for respondent.

Submitted by Dara L. Rosenbaum, for third-party

respondent Complete Construction

Submitted by Barbara A. Sheehan, for third-party

respondent F. J. Sciame Construction Co., Inc.

MEMORANDUM

The Appellate Division order should be affirmed, with costs, and the certified question answered in the affirmative. As our holding in Outar v City of New York indicates, "falling object" liability under Labor Law § 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured 5 NY3d 731 [2005], affg 11 AD3d 593 [2d Dept 2004]). In this case, plaintiff alleges that he was struck by falling planks that had been placed over open doors as a makeshift shelf to facilitate the installation of an air conditioner above a doorway. We agree with the Appellate Division majority that triable questions of fact preclude summary judgment on plaintiff's Labor Law § 240(1) claim, including whether the planks were adequately secured in light of the purposes of the plank assembly and whether plaintiff caused the accident by jostling the doors after disregarding a warning not to enter the doorway area. Accordingly, the Appellate Division properly modified Supreme Court's order to the extent of denying partial summary judgment on plaintiff's Labor Law § 240(1) claim.

* * * * * * * * * * * * * * * * *

On review of submissions pursuant to section 500.11 of the Rules, order affirmed, with costs, and certified question answered in the affirmative, in a memorandum. Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Decided September 9, 2008