Desjardins v. Auburn Steel Co.

Appellate Division of the Supreme Court of New York

Desjardins v. Auburn Steel Co.

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 14, 1992

StatusPublished

Cited by1 cases

This text of 185 A.D.2d 627 (Desjardins v. Auburn Steel Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Desjardins v. Auburn Steel Co., 185 A.D.2d 627, 586 N.Y.S.2d 45, 1992 N.Y. App. Div. LEXIS 9150 (N.Y. Ct. App. 1992).

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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.

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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.

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Bluebook (online)

185 A.D.2d 627, 586 N.Y.S.2d 45, 1992 N.Y. App. Div. LEXIS 9150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/desjardins-v-auburn-steel-co-nyappdiv-1992.

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