| Seaman v Bellmore Fire Dist. |
| 2009 NY Slip Op 01099 [59 AD3d 515] |
| February 10, 2009 |
| Appellate Division, Second Department |
| Thomas Seaman, Appellant, et al., Plaintiff, v BellmoreFire District et al., Respondents. |
—[*1] Lewis Brisbois Bisgaard & Smith, LLP (Shaub, Ahmuty, Citrin & Spratt, LLP, LakeSuccess, N.Y. [Christopher Simone and David J. Kaplan], of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiff Thomas Seamanappeals from an order of the Supreme Court, Nassau County (Feinman, J.), dated May 7, 2007,which granted the defendants' motion for summary judgment dismissing the Labor Law §240 (1) cause of action and denied his cross motion for summary judgment on the issue ofliability on his causes of action alleging violations of Labor Law § 240 (1) and §241 (6).
Ordered that the order is affirmed, with costs.
The Supreme Court correctly concluded that the defendants were entitled to summaryjudgment dismissing the cause of action alleging a violation of Labor Law § 240 (1). "Thecontemplated hazards [of Labor Law § 240 (1)] are those related to the effects of gravitywhere protective devices are called for either because of a difference between the elevation levelof the required work and a lower level or a difference between the elevation level where theworker is positioned and the higher level of the materials or load being hoisted or secured"(Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). The defendantsestablished that the appellant's injury did not result from the type of elevation-related hazardcontemplated by Labor Law § 240 (1) and, in response, the appellant failed to raise atriable issue of fact (see Smith v New York State Elec. & Gas Corp., 82 NY2d 781, 783[1993]; Biafora v City of New York,27 AD3d 506 [2006]).
The Supreme Court was also correct in denying that branch of the appellant's motion whichwas for summary judgment on the issue of liability on the cause of action alleging a violation of[*2]Labor Law § 241 (6). In order to establish liabilityunder Labor Law § 241 (6), a plaintiff must demonstrate that the defendant's violation of aspecific rule or regulation was a proximate cause of the accident (see Mercado v TPT Brooklyn Assoc.,LLC, 38 AD3d 732, 733 [2007]). Moreover, where such a violation is established, itdoes not conclusively establish a defendant's liability as a matter of law, but constitutes someevidence of negligence and "thereby reserve[s], for resolution by a jury, the issue of whether theequipment, operation or conduct at the worksite was reasonable and adequate under theparticular circumstances" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 351 [1998];see Long v Forest-Fehlhaber, 55 NY2d 154, 160 [1982]; Daniels v Potsdam Cent.School Dist., 256 AD2d 897, 898 [1998]). Here, the appellant failed to establish his primafacie entitlement to judgment as a matter of law and, thus, that branch of his motion which wasfor summary judgment on the issue of liability on the Labor Law § 241 (6) cause of actionwas correctly denied regardless of the sufficiency of the opposition papers (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
We decline the defendants' request that we search the record and award them summaryjudgment dismissing the cause of action alleging a violation of Labor Law § 241 (6).Ritter, J.P., Florio, Miller and Carni, JJ., concur.