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HERRERA v. KENT AVE. PROP. III LLC

Index No. 304215/13E. Appeal No. 15519-15519A. Case Nos. 2020-04178, 2021-01510.

203 A.D.3d 512 (2022)

161 N.Y.S.3d 766

2022 NY Slip Op 01738

Erwin Herrera et al., Respondents, v. Kent Avenue Property III LLC et al., Appellants-Respondents, and J & A Concrete Corp., Respondent-Appellant. (And Third-Party Actions.)

Appellate Division of the Supreme Court of New York, First Department.

Decided March 15, 2022.

Attorney(s) appearing for the Case

Lawrence, Worden, Rainis & Bard, P.C., Melville (Karin McCarthy of counsel), for appellants-respondents.

Cerussi & Spring, P.C., White Plains (Christopher B. Roberta of counsel), for respondent-appellant.

Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for Erwin Herrera and Lauteria Herrera, respondents.

Concur—Gische, J.P., Kern, González, Shulman, Higgitt, JJ.

Labor Law § 240(1) is inapplicable to this case because plaintiff's injuries were not "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 603 [2009]). Plaintiff was struck by an excavator; the fact that at the time he was bringing debris up an earthen ramp, or that he rolled down the...

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