
    [750 NE2d 1085, 727 NYS2d 37]
    Alex Narducci et al., Respondents, v Manhasset Bay Associates et al., Appellants, et al., Defendants. Manhasset Bay Associates et al., Third-Party Plaintiffs-Appellants, v Atlantic Windows, Third-Party Defendant-Respondent, et al., Third-Party Defendants. (And Other Actions.) Louis A. Capparelli, Jr., et al., Appellants, v Zausmer Frisch Associates, Inc., et al., Respondents. Zausmer Frisch Construction Co., Inc., Third-Party Plaintiff-Respondent, v Burns Electric Co., Inc., Third-Party DefendantRespondent.
    Argued March 27, 2001;
    decided May 10, 2001
    
      POINTS OF COUNSEL
    
      Fiedelman & McGaw, Jericho (James K. O’Sullivan of counsel), and Alan I. Lamer, Elmsford, for Manhasset Bay As
    
      
      Bunin & DiGiulio, New York City (Sheldon Bunin of counsel), for EBH Construction, Ltd., defendant and third-party plaintiff-appellant in the first above-entitled action.
    I. Section 240 of the Labor Law does not apply to the facts of this accident. Here plaintiff and the offending window glass were essentially at the same level, and the object that fell was not an item unsecured or being hoisted in relation to work being performed above him. This accident comes squarely within this Court’s holding in Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494). There was no elevation differential between plaintiff and the falling glass such as would invoke the protections of section 240. The presence or absence of any device mandated by section 240 (1) was not a factor in this accident. Under these circumstances, plaintiff had no prima facie claim under section 240; the mere fact that it may be said that the glass “fell from an elevated work site” is not, by itself, enough to change that. EBH was entitled to summary judgment on the section 240 claim. (Misseritti v Mark TV Constr. Co., 86 NY2d 487; Fox v Jenny Eng’g Corp., 122 AD2d 532, 70 NY2d 761; Nieves v Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914; Rocovich v Consolidated Edison Co., 78 NY2d 509; Melo v Consolidated Edison Co., 92 NY2d 909; Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841; Zdzinski v North Star Constr., 242 AD2d 951, 91 NY2d 804; Hunter v BTC Block 17/18, 210 AD2d 968.) II. EBH also was entitled to a dismissal of plaintiffs Labor Law § 200 and common-law negligence claims for two reasons: (a) because there could be no liability under section 200 or in common-law negligence on the part of EBH to a plaintiff injured by a dangerous condition that he was employed to rectify, and (b) there can be no such liability where the accident occurred as a detail of the means and methods of the work of the independent contractor employing plaintiff, over which work EBH did not exercise any supervision or control, regardless of whether it may have had the authority to do so, if it chose to exercise such authority, but did not. As a result the certified question must be answered in the negative and defendant-appellant EBH is entitled to an order dismissing the Labor Law § 240, Labor Law § 200 and common-law negligence claims against it. (Gasper v Ford Motor Co., 13 NY2d 104; Kowalsky v Conreco Co., 264 NY 125; Carrion v Lewmara Realty Corp., 222 AD2d 205; Lanzilotta v Lizby Assocs., 216 AD2d 229; McCullum v Barrington Co. & 309 56th St. Co., 192 AD2d 489; Barnes v Lucas, 234 AD2d 405; Sanders v TDX Constr. Corp., 203 AD2d 353.)
    
      Alexander J. Wulwick, New York City, and Mitchell Parnes for respondents in the first above-entitled action.
    I. Plaintiff was injured as a result of an elevation-related hazard, in that his ladder proved inadequate to shield him from the application of the force of gravity to an object falling from his elevated work site from a substantial height above his head. (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Rocovich v Consolidated Edison Co., 78 NY2d 509; Felker v Corning Inc., 90 NY2d 219; DeHaen v Rockwood Sprinkler Co., 258 NY 350; Sniadecki v Westfield Cent. School Dist., 272 AD2d 955; Paunovski v Black Riv. Hous. Council, 265 AD2d 876; Sasso v NYMED, Inc., 238 AD2d 799; McCloud v Rochester Gas & Elec. Corp., 203 AD2d 923; Tallchief v Jemco Roofing, 217 AD2d 915; Severino v Schuyler Meadows Club, 225 AD2d 954.) II. A question of fact exists regarding EBH’s supervision and control of the work site. (Rizzuto v Wenger Contr. Co., 91 NY2d 343.)
    
      Colligan & Hickey, Roslyn Heights (Anita Nissan Yehuda of counsel), for third-party defendant-respondent in the first above-entitled action.
    I. Plaintiff’s Labor Law § 240 (1) claim should be dismissed. (Dias v Stahl, 256 AD2d 235; Amato v State of New York, 241 AD2d 400; McGuire v Independent Cement Corp., 255 AD2d 646; Young v Barden Robeson Corp., 247 AD2d 755; Misseritti v Mark IV Constr. Co., 86 NY2d 487; Rodriguez v Tietz Ctr. for Nursing Care, 197 AD2d 565, 84 NY2d 841; Nieves v Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914; Maggi v Innovax Methods Group Co., 250 AD2d 576.) II. EBH’s motion for summary judgment on its negligence and Labor Law § 200 claims was properly denied. (Rizzuto v Wenger Constr. Co., 91 NY2d 343; Brogan v International Bus. Machs. Corp., 157 AD2d 76; Motyka v Ogden Martin Sys. of Onondaga Ltd. Partnership, 272 AD2d 980; Badagliacca v Lehrer McGovern Bovis, 267 AD2d 16.)
    
      Hancock & Estabrook, L. L. P., Syracuse (Janet D. Callahan of counsel), and Cherundolo, Bottar & Leone, P. C. (Edward S. Leone of counsel), for appellants in the second above-entitled action.
    The order of the court below dismissing the Labor Law § 240 (1) cause of action should be reversed because it is contrary to prior holdings of this Court and inconsistent with holdings of the other departments of the court below. (Misseritti v Mark IV Constr. Co., 86 NY2d 487; Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Rocovich v Consolidated Edison Co., 78 NY2d 509; Melo v Consolidated Edison Co., 92 NY2d 909; Brust v Estee Lauder Inc., 184 AD2d 474; Amato v State of New York, 241 AD2d 400; Baker v Barron’s Educ. Serv. Corp., 248 AD2d 655; Matter of Sabovic v State of New York, 229 AD2d 586; Sutfin v Ithaca Coll., 240 AD2d 989.)
    
      Costello, Cooney & Fearon, L. L. P., Syracuse (Paul G. Ferrara of counsel), for defendants and third-party plaintiffs-respondents in the second above-entitled action.
    I. The court below properly dismissed appellants’ Labor Law § 240 (1) cause of action because his injury was not caused by an extraordinary elevation related risk. (Misseritti v Mark IV Contr. Co., 86 NY2d 487, 87 NY2d 969; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841; Corey v Gorick Constr. Co., 271 AD2d 911; Melo v Consolidated Edison Co., 246 AD2d 459, 92 NY2d 909; Bailey v Young Men’s Christian Assn., 267 AD2d 642; Vornfett v Port Auth., 238 AD2d 134; Schreiner v Cremosa Cheese Corp., 202 AD2d 657; Simon v City of New York, 265 AD2d 318; Piccinich v New York Stock Exch., 257 AD2d 438.) II. The court below properly dismissed appellant’s Labor Law § 240 (1) claim because he was not working at an elevated height within the scope of the statute. (Rocovich v Consolidated Edison Co., 78 NY2d 509; Amo v Little Rapids Corp., 268 AD2d 712; Cundy v New York State Elec. & Gas Corp., 273 AD2d 743; Tillman v Triou’s Custom Homes, 253 AD2d 254; Sousa v American Ref-Fuel Co., 258 AD2d 514; Duffy v Bass & D’Allesandro, 245 AD2d 333; Francis v Aluminum Co., 240 AD2d 985.)
    
      Mackenzie Smith Lewis Michell & Hughes, L. L. P., Syracuse 
      (Nancy L. Pontius of counsel), and James P. O’Connor, New York City, for third-party defendant-respondent in the second above-entitled action.
    I. The court below followed the clear precedent of this Court in dismissing appellant’s Labor Law § 240 (1) claim. (Rocovich v Consolidated Edison Co., 78 NY2d 509; Melber v 6333 Main St., 91 NY2d 759; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841; Misseritti v Mark IV Constr. Co., 86 NY2d 487; Melo v Consolidated Edison Co., 92 NY2d 909; Schreiner v Cremosa Cheese Corp., 202 AD2d 657; Stang v Garbellano, 262 AD2d 853.) II. The decisions of the court below cited by appellant in support of reversal are distinguishable, in conflict with the decisions of this Court, or both. (Narducci v Manhasset Bay Assocs., 270 AD2d 60, 272 AD2d 1003; Sasso v NYMED, Inc., 238 AD2d 799.)
    
      Fiedelman & McGaw, Jericho (Andrew Zajac of counsel), Kenneth M. Dalton, Dawn C. DeSimone, Elizabeth Anne Bannon, Kathleen B. Foley and Richard B. Polner for Defense Association of New York, Inc., amicus curiae in the second above-entitled action.
    Plaintiff was not exposed to the extraordinary elevation dangers against which Labor Law § 240 (1) was intended to protect: he was not injured due to the lack of a required safety device, nor does the minimal fall of the light fixture implicate the statute. (Rocovich v Consolidated Edison Co., 78 NY2d 509; Misseritti v Mark IV Constr. Co., 86 NY2d 487; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Baker v Barron’s Educ. Serv. Corp., 248 AD2d 655; Sutfin v Ithaca Coll., 240 AD2d 989; Piccinich v New York Stock Exch., 257 AD2d 438; Ruiz v 8600 Roll Rd., 190 AD2d 1030; Nieves v Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914; Tillman v Triou’s Custom Homes, 253 AD2d 254; Malecki v Wal-Mart Stores, 222 AD2d 1010.)
   OPINION OF THE COURT

Ciparick, J.

These appeals require us to examine the circumstances under which Labor Law § 240 (1) liability may be imposed upon property owners and contractors when an object falls on a worker at a construction site. Neither situation presented here gives rise to liability under Labor Law § 240 (1).

Plaintiff Alex Narducci, an employee of Atlantic Windows, was assigned the task of removing steel window frames, as part of a larger restoration project, from the third floor exterior of a fire-damaged Long Island City warehouse owned by Manhasset Bay Associates and leased to Thypin Steel. To oversee the restoration, Thypin hired Preferred Restoration Experts as its general contractor and Preferred, in turn, hired EBH Construction as its construction manager on the site. Preferred also hired the window subcontractor, A & D Windows who hired Atlantic.

On the day of his accident, plaintiff began by working on the window frame furthest to the right of the three that he was assigned to remove. As he stood on a ladder propped against the right-most window frame sawing the frame loose, plaintiff paused, looked over and saw a large piece of glass from an adjacent window frame falling toward him. He turned to avoid being hit in the face by the glass, but was severely cut on his right arm. Plaintiff did not fall from the ladder, nor did the ladder malfunction in any way.

Plaintiff brought suit under Labor Law § 240 (1), alleging that he should have been given a scissor jack — a type of hydraulic platform — to perform his work properly. Supreme Court denied motions by defendants Manhasset Bay Associates, Thypin Steel and EBH Construction to dismiss plaintiff’s Labor Law § 240 (1) claim, holding that issues of fact existed as to whether scaffolding could have prevented the accident. Further, the court denied EBH Construction’s motion to dismiss plaintiff’s Labor Law § 200 claim against it. A divided Appellate Division affirmed. We now reverse.

Plaintiff Louis Capparelli, Jr., a journeyman electrician employed by Burns Electric Co., was assigned the job of installing fluorescent light fixtures into a dropped ceiling grid as part of the renovation of Onondaga Plaza, a facility in Syracuse. The owner of the facility, Council House Realty Corp., hired Zausmer Frisch Construction, Inc. as its general contractor for the renovation, and Zausmer Frisch contracted with Burns Electric.

Planning to install a ceiling fixture, plaintiff climbed about half-way up an eight-foot step ladder in order to reach the ten-foot ceiling. From his position on the ladder, plaintiff lifted the light fixture into the ceiling grid so that its edges rested on the grid. Plaintiff’s next step would have been to secure the fixture to the ceiling grid by twisting metal tabs attached to the fixture; however, as he was about to descend the ladder in order to change position to perform that step, the light fixture began to fall from the grid. Plaintiff immediately reached out to stop the fixture from hitting him, but the fixture slid as he tried to hold it, cutting his right hand and wrist. Plaintiff" did not fall from the ladder.

Plaintiff brought suit under Labor Law § 240 (1), alleging that he should have been given a scaffold to perform his work that day. Supreme Court denied cross motions for summary judgment on the Labor Law § 240 (1) claim, holding that issues of fact existed. The Appellate Division modified by granting the cross motion of third party defendant Burns Electric, holding that plaintiffs injury was caused by “the usual and ordinary dangers of a construction site” and not the “extraordinary elevation risks” covered by Labor Law § 240 (1) (256 AD2d 1141). Following a judgment of Supreme Court dismissing the remaining causes of action, plaintiff appealed. We now affirm.

Discussion

Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501).

Labor Law § 240 (1) “ ‘is to be construed as liberally as may be for the accomplishment of the purpose for which it was * * * framed’” (Koenig v Patrick Constr. Corp., 298 NY 313, 319, quoting Quigley v Thatcher, 207 NY 66, 68), however, this principle operates to impose absolute liability only after a violation of the statute has been established. Even “a violation of [Labor Law § 240 (1)] cannot ‘establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury’ ” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 513, quoting DeHaen v Rockwood Sprinkler Co., 258 NY 350, 353).

Labor Law § 240 (1) applies to both “falling worker” and “falling object” cases. With respect to falling objects, Labor Law § 240 (1) applies where the falling of an object is related to “a significant risk inherent in * * * the relative elevation * * * at which materials or loads must be positioned or secured” (Rocovich v Consolidated Edison Co., supra, 78 NY2d, at 514). Thus, for section 240 (1) to apply, a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute (see, e.g., Pope v Supreme-K.R.W. Constr. Corp., 261 AD2d 523; Baker v Barron’s Educ. Serv. Corp., 248 AD2d 655).

In addition, the fact that an injured plaintiff may have been working at an elevation when the object fell is of no moment in a “falling object” case, because a different type of hazard is involved. Working at an elevation does not increase the risk of being hit by an improperly hoisted, load of materials from above. The hazard posed by working at an elevation is that, in the absence of adequate safety devices (e.g., scaffolds, ladders), a worker might be injured in a fall. By contrast, falling objects are associated with the failure to use a different type of safety device (e.g., ropes, pulleys, irons) also enumerated in the statute (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra, 81 NY2d, at 501). Because the different risks arise from different construction practices, the hazard from one type of activity cannot be “transferred” to create liability for a different type of accident.

Applying these principles to the facts in Narducci, the glass that fell on plaintiff was not a material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell, and thus Labor Law § 240 (1) does not apply. No one was working on the window from which the glass fell, nor was there evidence that anyone worked on that window during the renovation. The glass that fell was part of the preexisting building structure as it appeared before work began. This was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected.

Furthermore, while the risk of falling glass is assuredly greater at a warehouse whose windows have been damaged in a fire, that is not the type of risk that Labor Law § 240 (1) was intended to address. Absolute liability for falling objects under Labor Law § 240 (1) arises only when there is a failure to use necessary and adequate hoisting or securing devices. The absence of a necessary hoisting or securing device of the kind enumerated in Labor Law § 240 (1) did not cause the falling glass here. This was clearly a general hazard of the workplace, not one contemplated to be subject to Labor Law § 240 (1) (see, Misseritti v Mark IV Constr. Co., 86 NY2d 487).

Nor does the fact that plaintiff was working at an elevation bring this scenario within the ambit of Labor Law § 240 (1). Plaintiff does not contest that the ladder on which he was standing functioned properly. He was not injured as a result of a fall. Thus, since the ladder had no legally sufficient causal connection to this injury, it could not be deemed “inadequate” under these facts (see, Rocovich v Consolidated Edison Co., supra, 78 NY2d, at 513).

Plaintiff argues that if he had performed the task on a scissor jack it might have prevented the accident since he would have performed his work horizontally instead of vertically and, as a result, would have been in a different location when the glass fell. Also, plaintiff asserts that a scissor jack might have protected him from falling glass. As noted, however, a scissor jack is designed to protect the worker from falling, an entirely different risk. Here, plaintiff was adequately secured. The only risk was the glass. Since the glass was not an object being hoisted or secured, Labor Law § 240 (1) does not apply.

With respect to plaintiff Narducci’s Labor Law § 200 and common-law negligence claims against EBH Construction, we hold that the motion by defendant EBH Construction to dismiss those claims against it should have been granted. There was insufficient evidence, as a matter of law, to rebut EBH’s argument that it did not exercise sufficient control of the activities of subcontractors to justify the imposition of liability (Lombardi v Stout, 80 NY2d 290, 294).

The plaintiff in Capparelli similarly fails to state a claim under Labor Law § 240 (1). Plaintiff’s job was to secure the light fixture into place after he hoisted it into the ceiling grid. The ceiling that plaintiff was working at was ten feet high, while the ladder he was given was eight feet tall. Plaintiff was standing no less than halfway up the ladder when the light fixture fell on his arm, causing the injury.

Under these undisputed facts, there was no height differential between plaintiff and the falling object. Plaintiff was working at ceiling level when his accident occurred. That being so, this is not a case that entails the hazards presented by “a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured” (Rocovich v Consolidated Edison Co., supra, 78 NY2d, at 514). The fact that gravity worked upon this object which caused plaintiffs injury is insufficient to support a section 240 (1) claim (see, Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841; Terry v Mutual Life Ins. Co., 265 AD2d 929; Sutfin v Ithaca Coll., 240 AD2d 989).

While many workplace accidents, including this one, could be classified as “gravity-related” occurrences stemming from improperly hoisted or inadequately secured objects, courts may nonetheless distinguish those occurrences that do not fit within the Legislature’s intended application of Labor Law § 240 (1) (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra, 81 NY2d, at 501; see also, Temkin, New York’s Labor Law section 240: Has it Been Narrowed or Expanded by the Courts Beyond the Legislative Intent?, 44 NYL Sch L Rev 45 [2000]). The exclusion made for the de minimis elevation differential in this case is appropriate.

Accordingly, in Narducci, the order of the Appellate Division should be reversed, with costs, plaintiffs’ Labor Law § 240 (1) cause of action against EBH Construction, Ltd., Manhasset Bay Associates and Thypin Steel Company dismissed, plaintiffs’ Labor Law § 200 and common-law negligence causes of action as against EBH Construction, Ltd. likewise dismissed, and the certified question answered in the negative.

In Capparelli, the judgment appealed from and order of the Appellate Division brought up for review should be affirmed, with costs.

Chief Judge Kaye and Judges Smith, Levine, Wesley, Rosenblatt and Graffeo concur.

In Narducci v Manhasset Bay Assocs.: Order reversed, etc.

In Capparelli v Zausmer Frisch Assocs.: Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs. 
      
       Labor Law § 240 (1) provides, in relevant part: “All contractors and owners and their agents, * * * in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”
     