AUCHAMPAUGH v. (And a Third-Party Action.). (2008)

Appeal from that part of an order of the Supreme Court (Garry, J.), entered October 3, 2007 in Tompkins County, which partially denied motions by defendants Syracuse University, Project Orange Associates, L.P., General Electric International, Inc. and G.E. Contractual Services, Inc. for summary judgment dismissing the complaint against them.

Plaintiff was injured while working on a platform attached to the smokestacks of a steam cogeneration facility owned by defendant Project Orange Associates, L.P. on land leased from defendant Syracuse University (hereinafter collectively referred to as the University defendants).   The platform was located several feet above the rooftop of the facility and accessible by an attached ladder and hinged trapdoor built into the platform.   According to plaintiff, he was working on the platform when he stepped backward and tripped over the trapdoor, which he had left lying open on the platform.   He then fell, struck his left elbow on the platform, and his head and shoulders went into the open hatchway.   Plaintiff claims that he prevented himself from falling through the opening by grabbing the ladder with his right hand.

Plaintiff thereafter commenced this action asserting violations of Labor Law §§ 200, 240(1) and § 241(6).   Following joinder of issue, defendants General Electric International, Inc. and G.E. Contractual Services, Inc. (hereinafter collectively referred to as GE) and the University defendants moved for summary judgment dismissing the complaint, and plaintiff cross-moved for partial summary judgment on liability.   Supreme Court denied plaintiff's cross motion and partially granted the motions of the University defendants and GE by dismissing plaintiff's claim as to Labor Law § 200 only.   The University defendants and GE appeal, and we now modify by dismissing the complaint in its entirety.

 The hazards contemplated by Labor Law § 240(1) involve those “related to the effects of gravity where protective devices are called for ․ because of a difference between the elevation level of the required work and a lower level” (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932 [1991];  accord Grant v. Reconstruction Home, 267 A.D.2d 555, 556, 699 N.Y.S.2d 193 [1999], appeal dismissed 95 N.Y.2d 831, 713 N.Y.S.2d 2, 734 N.E.2d 1213 [2000], lv. dismissed 95 N.Y.2d 825, 712 N.Y.S.2d 450, 734 N.E.2d 762 [2000] ). It is well settled that “[t]he fact that a worker is injured while working above ground does not ipso facto mean that the injury resulted from an elevation-related risk contemplated by [the statute]” (Striegel v. Hillcrest Hgts. Dev. Corp., 100 N.Y.2d 974, 977, 768 N.Y.S.2d 727, 800 N.E.2d 1093 [2003];  see Favreau v. Barnett & Barnett, LLC, 47 A.D.3d 996, 997, 849 N.Y.S.2d 691 [2008] ).   Indeed, “[n]o Labor Law § 240(1) liability exists where an injury results from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first place” (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];  see 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];  Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993] ).

Here, plaintiff tripped and fell over the edge of the trapdoor and injured his elbow on the platform where he had been working.   While plaintiff maintains that the fall also caused his head and shoulders to hang down through the open hatchway, he testified that he never fell through the opening and there is no evidence that this contributed to his injury.   Accordingly, inasmuch as plaintiff's injury was not related to the effects of gravity and could have happened at ground level, his claims asserted pursuant to Labor Law § 240(1) should have been dismissed (see Favreau v. Barnett & Barnett, LLC, 47 A.D.3d at 998, 849 N.Y.S.2d 691;  Milligan v. Allied Bldrs., Inc., 34 A.D.3d 1268, 1268, 824 N.Y.S.2d 524 [2006];  Cundy v. New York State Elec. & Gas Corp., 273 A.D.2d 743, 744, 710 N.Y.S.2d 162 [2000], lv. denied 95 N.Y.2d 766, 716 N.Y.S.2d 640, 739 N.E.2d 1145 [2000];  Grant v. Reconstruction Home, 267 A.D.2d at 556, 699 N.Y.S.2d 193;  Dorr v. General Elec. Co., 235 A.D.2d 883, 884, 652 N.Y.S.2d 845 [1997] ).

 Turning to plaintiff's remaining cause of action, “a claim asserted under Labor Law § 241(6) must refer to a violation of a specific standard established by the Commissioner of Labor, and there must be proof that the violation of such provision was [a] proximate cause of any claimed injury” (Shields v. General Elec. Co., 3 A.D.3d 715, 718, 771 N.Y.S.2d 249 [2004];  see Atkinson v. State of New York, 49 A.D.3d 988, 989-990, 854 N.Y.S.2d 556 [2008];  Albert v. Williams Lubricants, Inc., 35 A.D.3d 1115, 1117, 828 N.Y.S.2d 593 [2006] ).   Here, in support of his section 241(6) claim, plaintiff relies on alleged violations of 12 NYCRR 23-1.7(b)(1), which regulates the treatment of hazardous openings, and 12 NYCRR 23-1.16, which sets forth the rules regarding the use of safety harnesses.   Inasmuch as there is no proof that any alleged violations of these regulations proximately caused plaintiff's injury, which resulted solely from his tripping on and falling to the platform where he was working, his claim in this regard also should have been dismissed (see Albert v. Williams Lubricants, Inc., 35 A.D.3d at 1117, 828 N.Y.S.2d 593;  Trippi v. Main-Huron, LLC, 28 A.D.3d 1069, 1070, 814 N.Y.S.2d 444 [2006] ).

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as partially denied the motions of defendants Syracuse University, Project Orange Associates, L.P., General Electric International, Inc. and G.E. Contractual Services, Inc.;   motions granted in their entirety, summary judgment awarded to said defendants and complaint dismissed against them;  and, as so modified, affirmed.

MERCURE, J.P.

SPAIN, CARPINELLO, MALONE JR. and STEIN, JJ., concur.