FENTY v. CITY OF NEW YORK (2010)

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered July 3, 2008, which, to the extent appealed from as limited by the briefs, granted the motions and cross motions by defendants City, Morris Park Contracting, Liro Group, Lafata-Corallo Plumbing-Heating and CDE Air Conditioning for summary judgment dismissing the complaint against them, and denied plaintiff's cross motion for partial summary judgment against those defendants as to liability on his Labor Law §§ 240(1) and 241(6) claims, unanimously affirmed, without costs.

 On the § 240(1) claim, plaintiff's injury-producing accident was not attributable to the risk arising from the elevation differentials at his worksite that brought about the need for the safety device in the first place, but rather was caused by the separate, unforeseeable hazard of hot steam emanating from a ruptured pipe, leading to plaintiff's decision to jump from the bucket lift (see Cohen v. Memorial Sloan-Kettering Cancer Ctr., 11 N.Y.3d 823, 825, 868 N.Y.S.2d 578, 897 N.E.2d 1059 [2008];  Nieves v. Five Boro A.C. & Refrig. Corp., 93 N.Y.2d 914, 916, 690 N.Y.S.2d 852, 712 N.E.2d 1219 [1999] ).   As to the § 241(6) claim, at the time of the accident, the work being conducted at the site did not constitute demolition, as required for application of the relied-upon section of the Industrial Code (12 NYCRR), § 23-3.2(a)(2) (see e.g. Baranello v. Rudin Mgt. Co., 13 A.D.3d 245, 785 N.Y.S.2d 918 [2004], lv. denied 5 N.Y.3d 706, 801 N.Y.S.2d 799, 835 N.E.2d 659 [2005] ).   Finally, absent evidence that any of the owners, contractors or subcontractors created or had notice of the defective condition, the Labor Law § 200 and common-law negligence claims as against these defendants were properly dismissed (see e.g. Urban v. No. 5 Times Sq. Dev., LLC, 62 A.D.3d 553, 879 N.Y.S.2d 122 [2009] ).