COHEN v. MEMORIAL SLOAN KETTERING CANCER CENTER

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Court of Appeals of New York.

Edward COHEN et al., Respondents, v. MEMORIAL SLOAN-KETTERING CANCER CENTER et al., Appellants.

Decided: October 28, 2008

Mauro Goldberg & hilling, Great Neck (Matthew W. Naparty of counsel), and Kopff, Nardelli & Dopf LLP, New York City (Martin B. Adams of counsel), for appellants. David P. Kownacki, New York City, for respondents.

 OPINION OF THE COURT

The order of the Appellate Division should be reversed, with costs, plaintiffs' cross motion for summary judgment on their Labor Law § 240(1) claim denied, defendants' motion for summary judgment dismissing the Labor Law § 240(1) claim granted, and the certified question answered in the negative.

  No 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 (see Nieves v. Five Boro A.C. & Refrig. Corp., 93 N.Y.2d 914, 690 N.Y.S.2d 852, 712 N.E.2d 1219 [1999];  Melber v. 6333 Main St., 91 N.Y.2d 759, 763-764, 676 N.Y.S.2d 104, 698 N.E.2d 933 [1998] ).   Here, the presence of two unconnected pipes protruding from a wall was not “the risk which brought about the need for the [ladder] in the first instance” (Nieves, 93 N.Y.2d at 916, 690 N.Y.S.2d 852, 712 N.E.2d 1219 [citations omitted] ), but was one of “the usual and ordinary dangers at a construction site” (id.) to which the “extraordinary protections of Labor Law § 240(1) [do not] extend” (id. at 915, 690 N.Y.S.2d 852, 712 N.E.2d 1219).

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.

MEMORANDUM.

Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.