Opinion
August 31, 1998
Appeal from the Supreme Court, Kings County (Hutcherson, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff Angelo Masullo, an employee of the third-party defendant A.F.C. Enterprises, Inc. (hereinafter AFC), was injured at a pumping station owned by the defendant City of New York (hereinafter the City). AFC had been retained by the City for the purpose of replacing certain sewer pipes located at the pumping station.
Having sustained injuries as a result of his falling into a manhole, the injured plaintiff commenced an action based, inter alia, on Labor Law § 240 Lab. (1). The Supreme Court granted the City's cross motion for summary judgment on the ground that the plaintiffs' proposed Labor Law § 240 Lab. claim lacked merit, for the injury was not the result of an elevation-related hazard.
While the manhole may have been negligently left uncovered, this is not one of the gravity-related hazards or perils subject to the safeguards prescribed by Labor Law § 240 Lab. (1) ( Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509). To the contrary, the fall was the "type of `ordinary and usual' peril a worker is commonly exposed to at a construction site" ( Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 489; Rodriguez v. Tietz Ctr. for Nursing Care, 84 N.Y.2d 841; McCague v. Walsh Constr., 225 A.D.2d 530).
Additionally, Labor Law § 240 Lab. (1) is applicable to work performed at heights or where the work itself involves risks related to differentials in elevation ( see, Groves v. Land's End Hous. Co., 80 N.Y.2d 978; Rocovich v. Consolidated Edison Co., supra). In the case herein, the work in which the injured plaintiff was involved was wholly unrelated to an elevation-related hazard, the manhole in which he fell, and thus, the City's cross motion for summary judgment was properly granted.
Mangano, P.J., Sullivan, Florio and Luciano, JJ., concur.