Opinion
February 8, 1999
Appeal from the Supreme Court, Nassau County (O'Connell, J.).
Ordered that the order is modified, on the law, by deleting the provisions thereof which denied those branches of the third-party defendant's motion which were for (1) summary judgment dismissing the plaintiff's claims pursuant to Labor Law § 240 Lab. (1), (2) summary judgment dismissing the plaintiff's claim pursuant to Labor Law § 241 Lab. (6) against the defendant third-party plaintiff Concrete Pumping Service, and (3) summary judgment dismissing those portions of the third-party complaint which are based upon those claims, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed, with costs to the appellant.
The plaintiff fell while standing atop an iron grid, which was at most 12 inches above the ground. This accident was not caused by an elevation-related hazard governed by Labor Law § 240 Lab. (1) ( see, Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494). To the contrary, the fall was the type of ordinary and usual peril a worker is commonly exposed to at a construction site and not an elevation-related risk subject to the safeguards prescribed by section 240 (1) ( see, Duffy v. Bass D'Allesandro, 245 A.D.2d 333, 334).
While questions of fact exist as to the liability of the defendant American Ref-Fuel Company of Hempstead under Labor Law § 241 Lab. (6) by virtue of its status as an owner, no claim pursuant to Labor Law § 241 Lab. (6) lies against the defendant third-party plaintiff Concrete Pumping Service, since it did not have control over the worksite ( see, Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343; Paone v. Westwood Vil., 178 A.D.2d 518).
The appellant's contentions that claims sounding in common-law negligence and Labor Law § 200 Lab. should be dismissed are raised for the first time in its reply brief and therefore are not properly before this Court ( see, Matter of American Cyanamid Co. v. Board of Assessors, 243 A.D.2d 630; Daly v. Messina, 228 A.D.2d 542).
O'Brien, J. P., Santucci, Joy and Goldstein, JJ., concur.