Second Department affirms summary judgment dismissing plaintiff's claims under Labor Law sections 240(1) and 241(6)

In Palumbo v. Transit Technologies, LLC, 144 A.D.3d 773 (2d Dep’t 2016),  plaintiff was working at an elevated subway station, feeding cable into a man-made permanent trench that adjoined the train tracks. The trench was approximately three feet wide by two feet deep. The cable was attached to a remotely-located pulling device and was moving at a controlled pace when it unexpectedly accelerated forward, pulling plaintiff part-way into the trench.  The Appellate Division adopted our argument that the case did not present an elevation-related risk covered by section 240(1). This conclusion can be supported by either or both of two key pieces of evidence: (1) the trench was only two feet deep, and (2) his fall did not directly flow from the application of the force of gravity but rather from the unanticipated force of the cable pulling him forward, i.e., horizontally toward the trench. The appellate court also ruled that the trench was not a “hazardous opening” within the meaning of Industrial Code section 23-1.7(b)(1)(i), precluding liability under Labor Law 241(6). The LCBF team was headed by Bill Ballaine.