In Makarius v. Port Authority of New York and New Jersey, a majority in the First Department dismissed plaintiff's Labor Law 240(1) claim (Roman, Andrias and McGuire), while a different majority found that issues of fact existed with respect to plaintiff's Labor Law 200 claim (Roman, Moskowitz and Freedman). On the issue of 240(1), plaintiff was injured while standing on the ground when a transformer attached to the wall slightly above his head fell, striking him in the head. The majority found that 1) there was no appreciable height differential between plaintiff and the object to trigger the extraordinary protections of the Labor Law and 2) plaintiff's injury did not result from the absence of a safety device.
The decision of the Court of Appeals in Runner v NYSE (13 NY3d 566 ) reared its head once again in the dissent by Justice Moskowitz (see blog of 8/31/10). According to Justice Moskowitz, since the injury here was gravity related it "fit squarely within the Runner criteria". Justice Moskowitz criticized the concurring opinion of Justice McGuire, stating that his interpretation of the statute was too narrow. Quoting Runner, Justice Moskowitz observed that "The breadth of the statute's [240(1)] protection has, however, been construed to be less wide than its text would indicate". Justice Moskowitz instead took an expansive view of the statute to find that the anchor bolts which secured the transformer to the wall were "safety devices" within the meaning of the Labor Law. Therefore, the failure of those devices, coupled with the effects of gravity on the transformer, triggered 240(1) liability.