| Sereno v Hong Kong Chinese Rest. |
| 2010 NY Slip Op 09320 [79 AD3d 1414] |
| December 16, 2010 |
| Appellate Division, Third Department |
| Joseph Sereno, Appellant, v Hong Kong Chinese Restaurant et al.,Respondents. |
—[*1] Williamson, Clune & Stevens, Ithaca (John S. McCaffrey of counsel), for respondents.
Stein, J. Appeal from an order of the Supreme Court (Mulvey, J.), entered August 27, 2009 inTompkins County, which, among other things, granted defendants' motion for summary judgmentdismissing the complaint.
In the course of his employment for a commercial cleaning company, plaintiff sustained an eyeinjury while cleaning grease from the exhaust system in a restaurant kitchen. Plaintiff was standing on theground while a coworker was lying on the exhaust hood four feet above him. As the coworker handedplaintiff a pressurized bottle containing a chemical used for cleaning, the bottle slipped from plaintiff'shands and, upon impact with the floor, sprayed the chemical into plaintiff's eye. Plaintiff commenced thisaction alleging, among other things, a violation of Labor Law § 240 (1). Defendants moved forsummary judgment dismissing the complaint on the basis that Labor Law § 240 (1) wasinapplicable to the facts of this case.[FN*]Plaintiff cross-moved for summary judgment as to liability pursuant to Labor Law § 240 (1).Supreme Court denied plaintiff's cross motion and granted defendants' motion, prompting this appealby plaintiff.[*2]
We affirm. Labor Law § 240 (1) requires thatcontractors and owners provide adequate safety devices to protect employees against elevation relatedhazards and imposes liability for injuries proximately caused by the failure to so provide (seeZimmer v Chemung County Performing Arts, 65 NY2d 513, 521 [1985]; see also Blake v Neighborhood Hous. Servs. ofN.Y. City, 1 NY3d 280, 286-290 [2003]). However, not all gravity-related risks fall withinthe parameters of the statute (see Labor Law § 240 [1]; Ross v Curtis-PalmerHydro-Elec. Co., 81 NY2d 494, 499-501 [1993]). "Notably, the special hazards encompassedby the statute 'are limited to such specific gravity-related accidents as falling from a height or beingstruck by a falling object' " (Corey v Gorick Constr. Co., 271 AD2d 911, 912 [2000], quotingRoss v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501) and do not "encompass everyaccident connected in some tangential way with the effects of gravity" (Woodell v Toshiba Intl.Corp., 305 AD2d 910, 911 [2003]).
Here, we reject plaintiff's argument that his injuries were attributable to the type of gravity-relatedrisk within the purview of Labor Law § 240 (1). Plaintiff, himself, testified that when he grabbedthe bottle, it slipped out of his hands and, after it hit the floor, the hose connected to the bottle becamedetached, resulting in its contents coming into contact with his eye. Inasmuch as plaintiff had taken holdof the bottle from his coworker and it was not being lowered when it fell to the ground, there was noelevation differential between the falling object and plaintiff (see Jordan v Blue Circle Atl., 306AD2d 741, 743 [2003]), and there is no evidence that the bottle fell "because of the [conceded]absence . . . of a safety device of the kind enumerated in the statute" (Narducci vManhasset Bay Assoc., 96 NY2d 259, 268 [2001] [emphasis omitted]). We also note that thebottle was not in the process of being hoisted or secured and that plaintiff was not injured as a result ofbeing struck by the falling bottle (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at500-501). Significantly, the injury suffered by plaintiff was not the direct consequence of the applicationof the force of gravity to the bottle (compareRunner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009]). Plaintiff was simply "'exposed to the usual and ordinary dangers of a [workplace], and not the extraordinary risks envisionedby Labor Law § 240 (1)' " (Cundy v New York State Elec. & Gas Corp., 273 AD2d743, 744 [2000], lv denied 95 NY2d 766 [2000], quoting Rodriguez v Margaret TietzCtr. for Nursing Care, 84 NY2d 841, 843 [1994]). We, therefore, conclude that Supreme Courtproperly granted defendants' motion for summary judgment dismissing the complaint and deniedplaintiff's cross motion.
Spain, J.P., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: Plaintiff did not oppose defendants'motion insofar as it related to plaintiff's claims of ordinary negligence or liability pursuant to Labor Law§§ 200 and 241 (6).