Pasquarello v. Citicorp/Quotron

251 A.D.2d 477, 673 N.Y.S.2d 595, 1998 N.Y. App. Div. LEXIS 6917

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Garry, J.), dated April 28, 1997, as granted those branches of the separate motions of the defendants Citicorp/ Quotron and Arc Electrical Contractors, Inc., which were for summary judgment dismissing the causes of action asserted in the complaint to recover damages under Labor Law § 240 (1) and § 241 (6), and the defendant Citicorp/Quotron cross-appeals from so much of the same order as denied those branches of its motion which were for summary judgment dismissing the causes of action asserted in the complaint to recover damages under Labor Law § 200 and common-law negligence.

Ordered that the order is modified, by deleting the provisions thereof which granted those branches of the separate motions which were for summary judgment dismissing the causes of action asserted in the complaint to recover damages under Labor Law § 241 (6) and substituting therefor provisions denying those branches of the motions; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs payable to the appellants-respondents.

The court properly dismissed the plaintiffs’ causes of action asserted under Labor Law § 240 (1) inasmuch as the accident was not caused by an elevation-related hazard within the meaning of that section (see, Rocovich v Consolidated Edison Co., 78 NY2d 509, 514; see also, Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491; Thompson v Ludovico, 246 AD2d 642; Phillips v City of New York, 228 AD2d 570). However, the court erred in dismissing the causes of action asserted under Labor Law § 241 (6), since the plaintiffs’ opposition papers identified an alleged violation of a particular specification of the Industrial Code (see, Comes v New York State Elec. & Gas Corp., 82 NY2d 876; see also, White v Farash Corp., 224 AD2d 978, 979).

The court properly denied Citicorp/Quotron’s motion to dismiss the plaintiffs’ causes of action to recover damages under Labor Law § 200 and for common-law negligence, since questions of fact exist as to these claims, precluding any grant of summary judgment (cf., Lysiak v Murray Realty Co., 227 AD2d 746; Adams v Glass Fab, 212 AD2d 972). Mangano, P. J., Thompson, Santucci and Altman, JJ., concur.