| Auchampaugh v Syracuse Univ. |
| 2008 NY Slip Op 10097 [57 AD3d 1291] |
| December 24, 2008 |
| Appellate Division, Third Department |
| Jonothon Auchampaugh, Respondent, v Syracuse University et al.,Appellants, et al., Defendants. (And a Third-Party Action.) |
—[*1] Nixon Peabody, L.L.P., Buffalo (Susan C. Roney of counsel), for General Electric International,Inc. and another, appellants. Learned, Reilly & Learned, L.L.P., Elmira (Shawn M. Sauro of counsel), for respondent.
Mercure, J.P. Appeal from that part of an order of the Supreme Court (Garry, J.), enteredOctober 3, 2007 in Tompkins County, which partially denied motions by defendants SyracuseUniversity, Project Orange Associates, L.P., General Electric International, Inc. and G.E. ContractualServices, Inc. for summary judgment dismissing the complaint against them.
Plaintiff was injured while working on a platform attached to the smokestacks of a steamcogeneration facility owned by defendant Project Orange Associates, L.P. on land leased fromdefendant Syracuse University (hereinafter collectively referred to as the University defendants). Theplatform was located several feet above the rooftop of the facility and accessible by an attached ladderand hinged trapdoor built into the platform. According to plaintiff, he was working on the platform whenhe stepped backward and tripped over the [*2]trapdoor, which he hadleft lying open on the platform. He then fell, struck his left elbow on the platform, and his head andshoulders went into the open hatchway. Plaintiff claims that he prevented himself from falling through theopening by grabbing the ladder with his right hand.
Plaintiff thereafter commenced this actionasserting violations of Labor Law §§ 200, 240 (1) and § 241 (6). Followingjoinder of issue, defendants General Electric International, Inc. and G.E. Contractual Services, Inc.(hereinafter collectively referred to as GE) and the University defendants moved for summary judgmentdismissing the complaint, and plaintiff cross-moved for partial summary judgment on liability. SupremeCourt denied plaintiff's cross motion and partially granted the motions of the University defendants andGE by dismissing plaintiff's claim as to Labor Law § 200 only. The University defendants and GEappeal, and we now modify by dismissing the complaint in its entirety.
The hazards contemplated by Labor Law § 240 (1) involve those "related to the effects ofgravity where protective devices are called for . . . because of a difference between theelevation level of the required work and a lower level" (Rocovich v Consolidated Edison Co.,78 NY2d 509, 514 [1991]; accord Grant v Reconstruction Home, 267 AD2d 555, 556[1999], appeal dismissed 95 NY2d 831 [2000], lv dismissed 95 NY2d 825 [2000]).It is well settled that "[t]he fact that a worker is injured while working above ground does not ipso factomean that the injury resulted from an elevation-related risk contemplated by [the statute]" (Striegel vHillcrest Hgts. Dev. Corp., 100 NY2d 974, 977 [2003]; see Favreau v Barnett & Barnett, LLC, 47 AD3d 996, 997 [2008]).Indeed, "[n]o Labor Law § 240 (1) liability exists where an injury results from a separate hazardwholly unrelated to the risk which brought about the need for the safety device in the first place" (Cohen v Memorial Sloan-Kettering CancerCtr., 11 NY3d 823, 825 [2008]; see Nieves v Five Boro A.C. & Refrig. Corp., 93NY2d 914, 916 [1999]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).
Here, plaintiff tripped and fell over the edge of the trapdoor and injured his elbow on the platformwhere he had been working. While plaintiff maintains that the fall also caused his head and shoulders tohang down through the open hatchway, he testified that he never fell through the opening and there is noevidence that this contributed to his injury. Accordingly, inasmuch as plaintiff's injury was not related tothe effects of gravity and could have happened at ground level, his claims asserted pursuant to LaborLaw § 240 (1) should have been dismissed (see Favreau v Barnett & Barnett, LLC, 47AD3d at 998; Milligan v Allied Bldrs.,Inc., 34 AD3d 1268, 1268 [2006]; Cundy v New York State Elec. & Gas Corp.,273 AD2d 743, 744 [2000], lv denied 95 NY2d 766 [2000]; Grant v ReconstructionHome, 267 AD2d at 556; Dorr v General Elec. Co., 235 AD2d 883, 884 [1997]).
Turning to plaintiff's remaining cause of action, "a claim asserted under Labor Law § 241 (6)must refer to a violation of a specific standard established by the Commissioner of Labor, and theremust be proof that the violation of such provision was [a] proximate cause of any claimed injury" (Shields v General Elec. Co., 3 AD3d715, 718 [2004]; see Atkinson v Stateof New York, 49 AD3d 988, 989-990 [2008]; Albert v Williams Lubricants, Inc., 35 AD3d 1115, 1117 [2006]). Here,in support of his section 241 (6) claim, plaintiff relies on alleged violations of 12 NYCRR 23-1.7 (b)(1), which regulates the treatment of hazardous openings, and 12 NYCRR 23-1.16, which sets forththe rules regarding the use of safety harnesses. Inasmuch as there is no proof that any alleged violationsof these regulations proximately caused plaintiff's injury, which resulted solely from his tripping on andfalling to the platform where he was [*3]working, his claim in thisregard also should have been dismissed (see Albert v Williams Lubricants, Inc., 35 AD3d at1117; Trippi v Main-Huron, LLC, 28AD3d 1069, 1070 [2006]).
Spain, Carpinello, Malone Jr. and Stein, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as partially denied the motions of defendants SyracuseUniversity, Project Orange Associates, L.P., General Electric International, Inc. and G.E. ContractualServices, Inc.; motions granted in their entirety, summary judgment awarded to said defendants andcomplaint dismissed against them; and, as so modified, affirmed.