TERRY v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK (1999)

 Supreme Court properly denied plaintiffs' motion for partial summary judgment on liability on the Labor Law § 240 claim and granted that part of defendants' cross motion seeking summary judgment dismissing that claim.   Ronnie L. Terry (plaintiff) was injured while working on a garage demolition project when a piece of the wall near where he was working fell on him as a result of vibrations from a Trac-Hoe.   Because the base of the wall was at the same elevation as plaintiff's worksite, the Labor Law § 240(1) claim was properly dismissed (see, Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 634 N.Y.S.2d 35, 657 N.E.2d 1318, rearg. denied 87 N.Y.2d 969, 642 N.Y.S.2d 197, 664 N.E.2d 1260;  Zdzinski v. North Star Constr., 242 A.D.2d 951, 662 N.Y.S.2d 887, lv. denied 91 N.Y.2d 804, 668 N.Y.S.2d 559, 691 N.E.2d 631;  Matter of Sabovic v. State of New York, 229 A.D.2d 586, 645 N.Y.S.2d 860).   Additionally, we note that plaintiffs failed to show that any work was being performed at the top of the wall from which the piece of concrete allegedly fell or that plaintiff observed loose pieces of concrete on top of the wall to support the Labor Law § 240(1) claim (see, Krencik v. Towne Red Hots, 171 A.D.2d 1033, 569 N.Y.S.2d 37).

 The court also properly denied that part of defendants' cross motion seeking dismissal of the Labor Law § 241(6) claim.   Plaintiffs alleged that defendants violated 12 NYCRR 23-1.7(a), 23-3.3 and 23-3.4(b).   Those sections set forth applicable “concrete specifications” (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82) regarding the protection to be provided workers from falling debris (see generally, Murtha v. Integral Constr. Corp., 253 A.D.2d 637, 639, 677 N.Y.S.2d 338;  Gawel v. Consolidated Edison Co. of N. Y., 237 A.D.2d 138, 655 N.Y.S.2d 351;  Klien v. County of Monroe, 219 A.D.2d 846, 632 N.Y.S.2d 343, lv. denied 87 N.Y.2d 804, 640 N.Y.S.2d 877, 663 N.E.2d 919).

Order unanimously affirmed without costs.

MEMORANDUM: