Desjardins v. Auburn Steel Co.

185 A.D.2d 627, 586 N.Y.S.2d 45, 1992 N.Y. App. Div. LEXIS 9150

Opinion

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Because plaintiff sustained his injury when he was struck by a crane and not as the result of a fall from a height or being struck by a falling object, Supreme Court erred in denying defendants’ motions to dismiss plaintiff’s Labor Law § 240 (1) cause of action (see, Oakes v Niagara Mohawk Power Corp., 176 AD2d 1240). Therefore, plaintiff’s Labor Law § 240 (1) cause of action must be dismissed.

The court, however, properly denied defendants’ motion for summary judgment dismissing plaintiff’s cause of action based on Labor Law § 241 (6). Plaintiff was performing repair work that was clearly within the ambit of section 241 (6) (see, Lozo v Crown Zellerbach Corp., 142 AD2d 949). Moreover, plaintiff’s failure to plead and prove any violation of a specific regulation is not fatal to his cause of action (see, Nagel v Metzger, 103 AD2d 1, 7). (Appeals from Order of Supreme Court, Erie County, Mintz, J.—Summary Judgment.) Present—Callahan, J. P., Green, Lawton, Boehm and Davis, JJ.