CONWAY v. BETH ISRAEL MEDICAL CENTER (1999)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Rockland County (Miller, J.), dated May 12, 1998, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff Timothy Conway (hereinafter Conway), while employed as a construction worker, stepped on an A-Frame dolly in a storage room in a building owned by the defendant, Beth Israel Medical Center (hereinafter Beth Israel).   The dolly moved about a foot and Conway's knee buckled causing him to fall and hit his shoulder on a compressor.

 The Supreme Court properly dismissed the plaintiffs' Labor Law § 200 claim because there was insufficient evidence in the record to create an issue of fact as to whether Beth Israel directed or controlled Conway's work (see, Rosemin v. Oved, 254 A.D.2d 343, 679 N.Y.S.2d 70;  Akins v. Baker, 247 A.D.2d 562, 669 N.Y.S.2d 63).   Additionally, an owner's duty to provide a safe workplace does not include protecting workers from dangers which, as here, are readily apparent (see, Rottkamp v. American Ref-Fuel of Hempstead, 251 A.D.2d 644, 675 N.Y.S.2d 115;  Duclos v. Bisordi, 209 A.D.2d 376, 618 N.Y.S.2d 424).

 The plaintiffs' Labor Law § 240 claim was also properly dismissed in light of the fact that Conway's work did not involve an elevation-related risk (see, Melber v. 6333 Main St., 91 N.Y.2d 759, 676 N.Y.S.2d 104, 698 N.E.2d 933;  Sousa v. American Ref-Fuel Co. of Hempstead, 258 A.D.2d 514, 685 N.Y.S.2d 279;  Masullo v. City of New York, 253 A.D.2d 541, 677 N.Y.S.2d 162;  Duffy v. Bass & D'Allesandro, 245 A.D.2d 333, 664 N.Y.S.2d 833).

 Finally, the Supreme Court properly dismissed the Labor Law § 241(6) claim.   The Industrial Code provisions relied upon by the plaintiff, 12 NYCRR 23-1.7(e)(1) and (2), are not applicable to the facts of this case.   The storeroom in which Conway was injured was not a “passageway” as required by 12 NYCRR 23-1.7(e)(1) (see, Mendoza v. Marche Libre Assocs., 256 A.D.2d 133, 681 N.Y.S.2d 517;  Vieira v. Tishman Constr. Corp., 255 A.D.2d 235, 679 N.Y.S.2d 618;  Maynard v. De Curtis, 252 A.D.2d 908, 676 N.Y.S.2d 340;  Lenard v. 1251 Ams. Assocs., 241 A.D.2d 391, 660 N.Y.S.2d 416;  Cafarella v. Harrison Radiator Div. Of Gen. Motors, 237 A.D.2d 936, 654 N.Y.S.2d 910).  With regard to 12 NYCRR 23-1.7(e)(2), the storeroom was not a “working area”, and the A-Frame was not a “scattered tool”, but rather was in its proper place.

MEMORANDUM BY THE COURT.