Summary
In Fenty, a construction worker was working inside a bucket lift when a steam pipe next to the lift ruptured, causing hot steam to emanate from the pipe and onto the plaintiff.
Summary of this case from Ferrante v. Metro. Transp. Auth.Opinion
No. 2307.
March 9, 2010.
Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered July 3, 2008, which, to the extent appealed from as limited by the briefs, granted the motions and cross motions by defendants City, Morris Park Contracting, Liro Group, Lafata-Corallo Plumbing-Heating and CDE Air Conditioning for summary judgment dismissing the complaint against them, and denied plaintiffs cross motion for partial summary judgment against those defendants as to liability on his Labor Law § 240 (1) and § 241 (6) claims, unanimously affirmed, without costs.
Pollack, Pollack, Isaac DeCicco, New York (Brian J. Isaac of counsel), for appellant.
Malapero Prisco, LLP, New York (Andrew L. Klauber of counsel), for The City of New York and Morris Park Contracting Corp., respondents.
O'Connor Redd, LLP, White Plains (Peter Urreta of counsel), for The Liro Group, respondent.
Mauro Goldberg Lilling LLP, Great Neck (Anthony F. DeStefano of counsel), for LaFata-Corallo Plumbing-Heating, Inc., respondent.
Wilson Elser Moskowitz Edelman Dicker LLP, New York (Judy C. Selmeci of counsel), for CDE Air Conditioning, respondent.
Ahmuty, Demers McManus, Albertson (Brendan T. Fitzpatrick of counsel), for Hilltop Construction and General Contracting, Inc., respondent.
Cascone Kluepfel, LLP, Garden City (Olympia Rubino of counsel), for Grand Piping Corp., respondent.
Before: Tom, J.P., Friedman, Sweeny, Nardelli and Abdus-Salaam, JJ.
On the section 240 (1) claim, plaintiffs injury-producing accident was not attributable to the risk arising from the elevation differentials at his work site that brought about the need for the safety device in the first place, but rather was caused by the separate, unforeseeable hazard of hot steam emanating from a ruptured pipe, leading to plaintiffs decision to jump from the bucket lift ( see Cohen v Memorial Sloan-Kettering Cancer Ctr., 11 NY3d 823, 825; Nieves v Five Boro A.C. Refrig. Corp., 93 NY2d 914, 916). As to the section 241 (6) claim, at the time of the accident, the work being conducted at the site did not constitute demolition, as required for application of the relied-upon section of the Industrial Code, 12 NYCRR 23-3.2 (a) (2) ( see e.g. Baranello v Rudin Mgt. Co., 13 AD3d 245, lv denied 5 NY3d 706). Finally, absent evidence that any of the owners, contractors or subcontractors created or had notice of the defective condition, the Labor Law § 200 and common-law negligence claims as against these defendants were properly dismissed ( see e.g. Urban v No. 5 Times Sq. Dev., LLC, 62 AD3d 553).
[Prior Case History: 2008 NY Slip Op 31878(U).]