| Rau v Bagels N Brunch, Inc. |
| 2008 NY Slip Op 10144 [57 AD3d 866] |
| December 23, 2008 |
| Appellate Division, Second Department |
| Robert Rau, Appellant, v Bagels N Brunch, Inc., et al.,Respondents. |
—[*1] Mazzara & Small, P.C., Hauppauge, N.Y. (Timothy F. Mazzara of counsel), for respondentsSommer Rolling Meadows Family Limited Partnership, Rolling Meadows, Inc., and WernerSommer.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his noticeof appeal and brief, from so much of an order of the Supreme Court, Suffolk County (R. Doyle, J.),dated September 4, 2007, as granted those branches of the respective cross motions of the defendantBagels N Brunch, Inc., the defendants Sommer Rolling Meadows Family Limited Partnership, RollingMeadows, Inc., and Werner Sommer, and the defendants Roy Von Kampen and Hermann G. VonKampen which were for summary judgment dismissing the causes of action pursuant to Labor Law§ 240 (1) and § 241 (6) insofar as asserted against each of them.
Ordered that the order is affirmed insofar as appealed from, with costs.
Labor Law § 240 (1) provides exceptional protection for workers against the "specialhazards" that arise when the work site itself either is elevated or is positioned below the level wherematerials or load are being hoisted or secured (see Ross v Curtis-Palmer Hydro-Elec. Co., 81NY2d 494, 500-501 [1993]; Rocovich v Consolidated Edison Co., 78 NY2d 509, 514-515[1991]; Gonzalez v Turner Constr. Co.,29 AD3d 630, 631 [2006]). These special hazards do not encompass any and all perils thatmay be connected in some tangential way with the effects of gravity. Rather, they are limited to suchspecific gravity-related accidents as falling from a height or being struck by a falling object that wasimproperly hoisted or inadequately secured (see Ross v Curtis-Palmer Hydro-Elec. Co., 81NY2d at 500-501; Rocovich v Consolidated Edison Co., 78 NY2d at 514-515; Turner vGarten Foods, 33 [*2]AD3d 691 [2006]; Gonzalez v TurnerConstr. Co., 29 AD3d at 631). Here, in support of their respective cross motions for summaryjudgment, the defendants Bagels N Brunch, Inc., Sommer Rolling Meadows Family LimitedPartnership, Rolling Meadows, Inc., Werner Sommer, Roy Von Kampen, and Herman G. VonKampen (hereinafter the defendants) demonstrated, prima facie, that the plaintiff's accident was notwithin the scope of Labor Law § 240 (1) (see Ross v Curtis-Palmer Hydro-Elec. Co.,81 NY2d at 500-501). In opposition, the plaintiff failed to raise a triable issue of fact. Thus, theSupreme Court properly granted those branches of the defendants' respective cross motions whichwere for summary judgment dismissing the cause of action to recover damages pursuant to Labor Law§ 240 (1) insofar as asserted against each of them.
Regarding the plaintiff's cause of action pursuant to Labor Law § 241 (6), which waspremised on violations of 12 NYCRR 23-1.5, 23-1.7, 23-1.16 and 23-1.21, owners and contractorsare required to "provide reasonable and adequate protection and safety" for workers, and are requiredto comply with the specific safety rules and regulations promulgated by the Commissioner of theDepartment of Labor (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501-502). Therule or regulation alleged to have been breached must be a specific, positive command and beapplicable to the facts of the case (see Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d616, 619 [2008]; Jicheng Liu v SanfordTower Condominium, Inc., 35 AD3d 378, 379 [2006]).
The defendants established, prima facie, that the regulations set forth at 12 NYCRR 23-1.16 and23-1.21, which set standards for safety belts and ladders, respectively, are inapplicable here becausethe plaintiff was not provided with any such devices (see Smith v Cari, LLC, 50 AD3d 879, 881 [2008]; Kwang Ho Kimv D & W Shin Realty Corp., 47 AD3d at 619; Juchniewicz v Merex Food Corp., 46 AD3d 623, 625 [2007]; Dzieran v 1800 Boston Rd., LLC, 25 AD3d336, 337-338 [2006]; Norton v Park Plaza Owners Corp., 263 AD2d 531, 532[1999]). In addition, 12 NYCRR 23-1.5 is insufficient to support the plaintiff's cause of action (see Maday v Gabe's Contr., LLC, 20AD3d 513 [2005]), and 12 NYCRR 23-1.7 is not applicable to the facts of this case (seeKwang Ho Kim v D & W Shin Realty Corp., 47 AD3d at 619; Jicheng Liu v Sanford TowerCondominium, Inc., 35 AD3d at 379). In opposition, the plaintiff failed to raise a triable issue offact. Accordingly, the Supreme Court properly granted those branches of the defendants' respectivecross motions which were for summary judgment dismissing the cause of action to recover damagespursuant to Labor Law § 241 (6) insofar as asserted against each of them. Prudenti, P.J., Dillon,Eng and Leventhal, JJ., concur. [See 2007 NY Slip Op 32986(U).]