Panattoni v. Inducon Park Associates, Inc.

Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: John Panattoni (plaintiff) was injured when he was struck by a section of a sewer pipe that was being lowered by a backhoe into a trench in which he was standing. The pipe was attached to the backhoe by a strap or choke collar, which broke; the pipe fell and struck plaintiff on the leg, knocking him to the ground. Supreme Court granted plaintiffs’ motion for partial summary judgment on the Labor Law § 240 (1) cause of action; this appeal arises as a result of a judgment against defendants following a trial on the issue of damages.

The court properly granted plaintiffs’ motion for partial summary judgment on the Labor Law § 240 (1) cause of action. Plaintiff was injured as a result of “being struck by a falling object that was improperly hoisted or inadequately secured” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 , 501; see, Sherman v Babylon Recycling Ctr., 218 AD2d 631 , lv dismissed 87 NY2d 895 ). Defendants’ reliance on Adamczyk v Hillview Estates Dev. Corp. ( 226 AD2d 1049 ) is misplaced. There the sewer pipe was being handed down to the plaintiff by a coworker standing above the trench; the pipe slipped from the co-worker’s hand and fell into the trench, and the plaintiff was injured when he caught the pipe and injured his back. That case involved “the usual and ordinary dangers of a construe

We agree with defendants that the court erred in failing to reduce the verdict by $20,307.99, the amount paid by a private health insurer for plaintiffs back treatment. Private health insurance benefits are collateral source payments to be deducted from damages awards (see, CPLR 4545 [c]; Niemann v Luca, 168 Misc 2d 1023 , 1026-1027). Plaintiffs failed to demonstrate that the health insurance benefits would be covered by Workers’ Compensation insurance and thus would be subject to a lien and not subject to an offset. Moreover, the Workers’ Compensation Board is not bound by the court’s determination that plaintiffs back injuries arose from a worksite accident (see, O’Rourke v Long, 41 NY2d 219 , 228). We have reviewed the remaining contentions of defendants and conclude that they are without merit.

We therefore modify the judgment by deducting the amount of $20,307.99, plaintiffs private health insurance benefits, and otherwise affirm. (Appeals from Judgment of Supreme Court, Niagara County, Koshian, J. — Summary Judgment.)

Present— Denman, P. J., Lawton, Hayes, Balio and Boehm, JJ.