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Martin FILLS, appellant, v. MERIT OIL CORPORATION, defendant, 730 Equity Corporation, respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (I. Aronin, J.), dated October 10, 1997, as granted those branches of the defendants' motion which were for summary judgment dismissing his causes of action based on Labor Law §§ 240(1) and 241(6) insofar as asserted against the defendant 730 Equity Corporation.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In June 1990 the plaintiff was working on a project to install underground petroleum tanks at a gasoline service station owned by the defendant 730 Equity Corporation (hereinafter 730 Equity). During the course of the project, a fellow employee who was standing on gravel inside an underground tank vault asked the plaintiff to lift a water pump out of the vault. According to his deposition testimony, the plaintiff leaned over a foundation wall which was waist high, reached down into the vault, and pulled the pump up with one hand. The plaintiff alleges that he seriously injured his back while pulling up the water pump, which weighed approximately 100 pounds.
Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing his cause of action based on Labor Law § 240(1) as against 730 Equity. Labor Law § 240(1) requires contractors, owners, and their agents to provide certain safety devices which are “so constructed, placed and operated as to give proper protection” to workers exposed to elevation-related hazards (Labor Law § 240[1]; see also, Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 634 N.Y.S.2d 35, 657 N.E.2d 1318; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82). “It is in recognition of the exceptionally dangerous conditions posed by elevation differentials at work sites that section 240(1) prescribes safety precautions for workers laboring under unique gravity-related hazards” (Misseritti v. Mark IV Constr. Co., supra, at 491, 634 N.Y.S.2d 35, 657 N.E.2d 1318). However, the statute does not “encompass any and all perils that may be connected in some tangential way with the effects of gravity” (Ross v. Curtis-Palmer Hydro-Elec. Co., at 501, 601 N.Y.S.2d 49, 618 N.E.2d 82). Here, in opposition to the defendants' motion for summary judgment, the plaintiff alleged, for the first time, that his accident was gravity-related because his co-worker was helping him lift the pump out of the tank vault when he lost his footing and dropped his end of the pump. However, even crediting this allegation, the accident was only tangentially connected with the effects of gravity (see, Ross v. Curtis-Palmer Hydro-Elec. Co., supra; Sutfin v. Ithaca Coll., 240 A.D.2d 989, 659 N.Y.S.2d 555).
Furthermore, the court properly dismissed the plaintiff's cause of action based on Labor Law § 241(6) insofar as asserted against 730 Equity. In order to establish a cause of action under Labor Law § 241(6), the plaintiff must demonstrate that the defendant has violated specific safety rules promulgated by the Commissioner of the Department of Labor as part of the Industrial Code (see, Ross v. Curtis-Palmer Hydro-Elec. Co., supra; Heizman v. Long Is. Light. Co., 251 A.D.2d 289, 674 N.Y.S.2d 59). At bar, however, the Industrial Code provisions upon which the plaintiff relies are not applicable to the facts of this case.
MEMORANDUM BY THE COURT.
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Decided: February 16, 1999
Court: Supreme Court, Appellate Division, Second Department, New York.
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