Opinion
101 SSM 6.
Decided May 2, 2006.
APPEAL from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered December 22, 2005. The Appellate Division, with two Justices dissenting, modified, on the law, an order of the Supreme Court, Erie County (John P. Lane, J.), which, insofar as appealed from, had denied that part of defendant's motion for summary judgment dismissing the Labor Law § 240 (1) cause of action and had granted that part of defendant's motion for summary judgment dismissing the Labor Law § 241 (6) cause of action and granted plaintiff's cross motion for partial summary judgment on liability on the Labor Law § 240 (1) cause of action. The modification consisted of granting defendant's motion in its entirety, dismissing the complaint and denying plaintiff's cross motion. The Appellate Division affirmed the judgment as modified. Keavey v. New York State Dormitory Auth., 24 AD3d 1193, affirmed.
Collins Maxwell, Buffalo ( Alan D. Voos of counsel), for appellant.
Rodgers Coppola, LLP, Buffalo ( Patricia S. Walker of counsel), for respondent.
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
The Appellate Division properly dismissed plaintiff's Labor Law § 240 (1) and § 241 (6) causes of action. The act of falling into a five- to six-inch gap between insulation boards, which were stacked eight-feet tall, is not a gravity-related accident encompassed by Labor Law § 240 (1) ( see Toefer v. Long Is. R.R., 4 NY3d 399; Rocovich v. Consolidated Edison Co., 78 NY2d 509). Further, plaintiff failed to demonstrate the applicability of any section of the Industrial Code.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs, in a memorandum.