Farmer v. City of Niagara Falls

—Order unanimously reversed on the law without costs, motion denied, cross motion granted and Labor Law § 240 (1) cause of action dismissed. Memorandum: Supreme Court erred in granting plaintiffs motion for partial summary judgment on liability under Labor Law § 240 (1) and in denying defendant’s cross motion for summary judgment dismissing that cause of action. The evidence establishes that plaintiff was injured while attempting to climb over a two- to four-foot-high interior concrete wall situated on the second-floor deck of a building under construction. Plaintiff had just cut a piece of lumber and was walking to the other side of the

Plaintiff did not fall from an elevated worksite (see, Gaul v Motorola, Inc., 216 AD2d 879 , 880). In climbing over the wall, plaintiff was faced with “the usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law § 240 (1)” (Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841 , 843; see, Misseritti v Mark IV Constr. Co., 86 NY2d 487 , 489, rearg denied 87 NY2d 969 ). (Appeal from Order of Supreme Court, Niagara County, Koshian, J. — Summary Judgment.) Present — Denman, P. J., Law-ton, Pigott, Jr., Balio and Boehm, JJ.