AMIRR v. John DiNaso & Sons, Inc., Third-Party Defendant-Respondent. (1997)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Cusick, J.), dated February 18, 1997, as denied their motion for partial summary judgment against the defendant third-party plaintiff Calcagno Construction Company on its cause of action under Labor Law § 240(1) and granted those branches of the separate cross motions of the defendant third-party plaintiff and third-party defendant which were to dismiss that cause of action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff Joseph Amirr was injured while working at a construction site located at a house owned by the defendants Antonio Pizzo and Sara Pizzo.   The defendant third-party plaintiff Calcagno Construction Company (hereinafter Calcagno) was the general contractor and the third-party defendant, John DiNaso & Sons, Inc. (hereinafter DiNaso), the injured plaintiff's employer, was the roofing subcontractor.   While on the roof of the house examining the chimney, the injured plaintiff slipped on snow and fell on the roof injuring his left elbow.

The Supreme Court correctly denied the plaintiffs' motion for partial summary judgment against Calcagno on its Labor Law § 240(1) cause of action and granted those branches of the cross motions of Calcagno and DiNaso which were for partial summary judgment dismissing that cause of action.   Amirr's injury did not result from an elevation-related hazard such as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932;  see also, Mitchell v. County of Jefferson, 226 A.D.2d 1109, 641 N.Y.S.2d 963;  McCague v. Walsh Constr., 225 A.D.2d 530, 638 N.Y.S.2d 752;  White v. Dorose Holding, 216 A.D.2d 290, 627 N.Y.S.2d 457).

MEMORANDUM BY THE COURT.