KRENCIK v. TOWNE RED HOTS, INC

Order unanimously reversed on the law without costs, motion denied and cross motion granted. Memorandum: Plaintiff William Krencik was injured when a piece of wood fell from the second story of a frame structure that was being demolished. At the time, Krencik was operating a piece of equipment called a "highlift" and was tearing down the structure by using the bucket of the highlift to cave in the structure and then remove the debris. Following joinder of issue, plaintiffs moved for partial summary judgment on liability on their Labor Law § 240 (1) cause of action. We conclude that Supreme Court erred in granting that motion and in denying the summary judgment cross motion of New Era Construction for dismissal of that cause of action.

Although the piece of wood fell from an elevated height at a construction site, there is no evidence in the record that the demolition project involved workers performing their labors while physically on or in the structure. The building itself did not constitute an elevated worksite, and thus, plaintiff was not injured by an object falling from an elevated worksite (see, Fox v Jenny Eng'g Corp., 122 A.D.2d 532, affd on other grounds 70 N.Y.2d 761; see also, Staples v Town of Amherst, 146 A.D.2d 292).