Justice Debra James
Plaintiff Colella suffered injuries to his right foot while operating a jackhammer as a construction worker by non-party contracting company LaQuila Group. He was injured at the Freedom Tower construction site, owned by defendant Port Authority of New York and New Jersey (PA). Colella alleged he was standing on a pile of rubble six inches to one foot high, and using a 90-pound jackhammer to take down a 12- to 18-inch wide concrete ledge that ran for a length of 30 to 40 feet along a wall at the site. Despite having requested both a scaffold and a tie-off, his supervisors ignored him and he was obliged to operate his jackhammer in that way under fear of losing his job. The PA argued that Colella may not assert Labor Law 240(1) claim because his injury was not the result of an “elevation related hazard.” Colella argued that his accident resulted from the force of gravity causing his jackhammer to fall on his foot from the wall he was chipping. The court agreed with Colella and denied the summary judgment dismissing Colella’s claim as based on Labor Law 240(1), citing the significant raising of the powered jackhammer three to three and one half feet above the work site.
