First Department Finds That A Falling Wall Posed A Labor Law 240(1) Risk

In Purcell v. Visiting Nurses Found. Inc., the plaintiff was standing on a closed A-frame ladder in the basement of a building that was undergoing a gut renovation.  As he pulled on a "c-channel" attached to the first floor framing, an unsecured terracotta wall on the first floor collapsed, knocking plaintiff off the ladder.  In distinguishing the case from Misseritti v. Mark IV Constr. Co. (86 NY2d 487 [1995]), the First Department concluded, without making a factual distinction, that the Court of Appeals in Misseritti had found that the hazard of a falling wall is an ordinary hazard of construction, whereas the wall at issue in the present case was an object that required securing for the purposes of the undertaking.  Clearly, the First Department was suggesting that because the wall was positioned above the plaintiff, rather than next to the plaintiff (Misseritti), plaintiff was exposed to an elevation-related hazard.  As to the closed A-frame ladder, since it had been positioned by plaintiff's foreman, the Court found that it was not properly placed to provide adequate protection. Therefore, the First Department reversed the lower court and granted partial summary judgment on liability in plaintiff's favor pursuant to Labor Law 240(1).