SOUSA v. Cannon Construction Co., Inc., third-party defendant-appellant. (1999)

In an action to recover damages for personal injuries, the third-party defendant, Cannon Construction Co., Inc., appeals from an order of the Supreme Court, Nassau County (O'Connell, J.), dated December 22, 1997, which denied its motion for summary judgment dismissing the complaint and the third-party complaint.

ORDERED that the order is modified, on the law, by deleting the provisions thereof which denied those branches of the third-party defendant's motion which were for (1) summary judgment dismissing the plaintiff's claims pursuant to Labor Law § 240(1), (2) summary judgment dismissing the plaintiff's claim pursuant to Labor Law § 241(6) against the defendant third-party plaintiff Concrete Pumping Service, and (3) summary judgment dismissing those portions of the third-party complaint which are based upon those claims, and substituting therefor provisions granting those branches of the motion;  as so modified, the order is affirmed, with costs to the appellant.

 The plaintiff fell while standing atop an iron grid, which was at most 12 inches above the ground.   This accident was not caused by an elevation-related hazard governed by Labor Law § 240(1) (see, Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219, 583 N.E.2d 932;  Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82).   To the contrary, the fall was the type of ordinary and usual peril a worker is commonly exposed to at a construction site and not an elevation-related risk subject to the safeguards prescribed by § 240(1) (see, Duffy v. Bass & D'Allesandro, 245 A.D.2d 333, 334, 664 N.Y.S.2d 833).

 While questions of fact exist as to the liability of the defendant American Ref-Fuel Company of Hempstead under Labor Law § 241(6) by virtue of its status as an owner, no claim pursuant to Labor Law § 241(6) lies against the defendant third-party plaintiff Concrete Pumping Service, since it did not have control over the worksite (see, Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343, 670 N.Y.S.2d 816, 693 N.E.2d 1068;  Paone v. Westwood Vil., 178 A.D.2d 518, 577 N.Y.S.2d 442).

 The appellant's contentions that claims sounding in common-law negligence and Labor Law § 200 should be dismissed are raised for the first time in its reply brief and therefore are not properly before this court (see, Matter of American Cyanamid Co. v. Board of Assessors, 243 A.D.2d 630, 663 N.Y.S.2d 1005;  Daly v. Messina, 228 A.D.2d 542, 644 N.Y.S.2d 778).

MEMORANDUM BY THE COURT.