Willie Farmer, Respondent, v. City of Niagara Falls, Appellant

Willie Farmer, Respondent, v City of Niagara Falls, Appellant. [672 NYS2d 173] [MAJORITY] —Order unanimously reversed on the law without costs, motion denied, cross motion granted and Labor Law § 240 (1) cause of action dismissed. Memorandum: Supreme Court erred in granting plaintiffs motion for partial summary judgment on liability under Labor Law § 240 (1) and in denying defendant’s cross motion for summary judgment dismissing that cause of action. The evidence establishes that plaintiff was injured while attempting to climb over a two- to four-foot-high interior concrete wall situated on the second-floor deck of a building under construction. Plaintiff had just cut a piece of lumber and was walking to the other side of the deck to join his co-worker. Plaintiff testified that, as he stepped over the top of the wall, his right pant leg snagged on a protruding rebar, causing him to lose his balance and fall three or four-feet. Plaintiff injured his ankle when his left foot landed on some scrap lumber. Plaintiff did not fall from an elevated worksite (see, Gaul v Motorola, Inc., 216 AD2d 879, 880). In climbing over the wall, plaintiff was faced with “the usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law § 240 (1)” (Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841, 843; see, Misseritti v Mark IV Constr. Co., 86 NY2d 487, 489, rearg denied 87 NY2d 969). (Appeal from Order of Supreme Court, Niagara County, Koshian, J. — Summary Judgment.) Present — Denman, P. J., Law-ton, Pigott, Jr., Balio and Boehm, JJ.