In Hettich v 125 E. 50th St. Co., LLC, the Appellate Division, First Department recently modified a lower court order to deny defendants’ motion for summary judgment dismissing the complaint, and affirmed the denial of plaintiff’s motion for summary judgment on liability.
In this case, plaintiff was injured when the hoist cable for the dumbwaiter in which he was working broke, causing the dumbwaiter and plaintiff to plunge 40 feet. The court held that there were issues of fact that precluded summary judgment for both parties:
Plaintiff was not injured by a dangerous condition that he had undertaken to fix. He was working on the replacement of a controller for a dumbwaiter; he was injured when the dumbwaiter’s hoist cable broke, causing the dumbwaiter (with plaintiff inside) to plunge 40 feet. The limited maintenance contract between defendants and plaintiff’s employer, third-party defendant Nouveau Elevator Industries, Inc., included inspection of hoist cables, but it did not include replacement of a controller. Moreover, at Nouveau, maintenance and repair were separate departments, and plaintiff was not the regular maintenance mechanic whom Nouveau assigned to defendants’ premises.
Nor was the ultimate cause of plaintiff’s injury the manner of his work (i.e., climbing into the dumbwaiter and closing the door). The record shows that the breaking strength of the hoist cable was 4200 pounds and the combined weight of the dumbwaiter itself and plaintiff was 565 pounds. Thus, if the hoist cable had been functioning properly, it would not have snapped, even with plaintiff in the dumbwaiter. The ultimate cause of plaintiff’s injury was a dangerous condition on defendants’ property, namely, the malfunctioning hoist cable, and defendants may be held liable for plaintiff’s injury under Labor Law § 200 and the common law if they either created or had notice of the dangerous condition. Issues of fact preclude summary judgment to either side. For example, there is conflicting evidence as to whether the old, failing hoist cable was actually replaced before plaintiff’s accident. (Emphasis added.)
Issues of fact likewise precluded summary judgment on plaintiff’s Labor Law § 240(1) cause of action.