NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
March 9, 2010
GERARD FENTY, PLAINTIFF-APPELLANT,
THE CITY OF NEW YORK, ET AL., DEFENDANTS-RESPONDENTS,
THE DEPARTMENT OF TRANSPORTATION, ET AL., DEFENDANTS.
THE CITY OF NEW YORK, ET AL., THIRD-PARTY PLAINTIFFS,
HILLTOP CONSTRUCTION AND GENERAL CONTRACTING, INC., ETC., THIRD-PARTY DEFENDANT-RESPONDENT.
CDE AIR CONDITIONING, SECOND THIRD-PARTY PLAINTIFF,
GRAND PIPING CORP., SECOND THIRD-PARTY DEFENDANT-RESPONDENT.
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 plaintiff's 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.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Friedman, Sweeny, Nardelli, Abdus-Salaam, JJ.
On the § 240(1) claim, plaintiff's injury-producing accident was not attributable to the risk arising from the elevation differentials at his worksite 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 plaintiff's 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 § 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 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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