SOLLY v. TAM CERAMICS INC (1999)

 Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint in this action alleging a violation of Labor Law § 240(1) and § 241(6).   At the time of the accident causing his injuries, Joseph F. Solly (plaintiff) was engaged in fabricating a steel cylinder that was to replace the intermediate section of a calciner owned by defendant.   The accident occurred at the facility of third-party defendant, Oldman Boiler Works, Inc. (Oldman).   Steel fabrication is the “customary occupational work” of plaintiff (Jock v. Fien, 80 N.Y.2d 965, 966, 590 N.Y.S.2d 878, 605 N.E.2d 365) and the “customary business of his employer”, Oldman (Foster v. Joseph Co., 216 A.D.2d 944, 629 N.Y.S.2d 149).  “His work fabricating the [cylinder] during the normal manufacturing process did not involve ‘erection, demolition, repairing, altering, painting, cleaning or pointing’ (Labor Law § 240[1] ), or ‘construction’ or ‘excavation’ work (Labor Law § 241[6];  see also, 12 NYCRR 23-1.4[b][13] ).  Thus, he was not engaged in an activity protected under Labor Law § 240(1) or § 241(6), which subject contractors and owners to absolute strict liability” (Jock v. Fien, supra, at 968, 590 N.Y.S.2d 878, 605 N.E.2d 365;  see, Foster v. Joseph Co., supra, at 944-945, 629 N.Y.S.2d 149;  Warsaw v. Eastern Rock Prods., 193 A.D.2d 1115, 599 N.Y.S.2d 207).

Plaintiffs do not raise any issue with respect to the dismissal of the negligence cause of action, and thus any challenge to that part of the order is deemed abandoned (see, Ciesinski v. Town of Aurora, 202 A.D.2d 984, 609 N.Y.S.2d 745).

Order unanimously affirmed without costs.

MEMORANDUM: