To Establish an Elevation-Related Hazard, the Danger Must be Elevated in Some Way

Whitehead v. City of New York, 79 A.D.3d 858, 913 N.Y.S.2d 697 (NY App. Div. 2010)

In Whitehead, the plaintiff allegedly was injured when a load of steel tubes rolled out of a hoist when the bindings were removed; the plaintiff fell and was struck by two tubes.  He sued the general contractor and owner under New York’s labor law and common law negligence theories.  The owner impleaded the steel construction subcontractor for contribution and indemnification.  The Appellate Division, Second Department, denied plaintiff’s motion for summary judgment, finding that the plaintiff was not subject to an elevation-related hazard since the steel tubes were at the same level as him.  The court also denied the third-party plaintiff’s motion for summary judgment on the grounds that it was untimely submitted with no excuse offered for the delay.