BOYLE v. [And Other Actions]

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Supreme Court, Appellate Division, First Department, New York.

Jeremy L. BOYLE, Plaintiff-Appellant-Respondent, v. 5 EAST 9TH STREET OWNERS CORPORATION, Defendant-Respondent-Appellant, Ellen Levy, Defendant-Respondent/Third-Party Plaintiff. F.C. Freyvogel & Company, Inc., Third-Party Defendant-Respondent. [And Other Actions]

Decided: May 26, 1998

Before MILONAS, J.P., and NARDELLI, MAZZARELLI and ANDRIAS, JJ. Jay Robert Powers, for Plaintiff-Appellant-Respondent. William J. Pisarello, for Defendant-Respondent-Appellant. Denise Filocoma, for Defendant-Respondent/Third-Party Plaintiff. Kenneth Horwitz, for Third-Party Defendant-Respondent.

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered June 4, 1997, which granted defendants' motions for summary judgment and dismissed the complaint and cross claims, unanimously affirmed, without costs.

Plaintiff was injured when an air conditioner he had just helped lift to a ceiling bracket where it was purportedly secured nonetheless fell some 1 and 1/2 feet from the bracket and struck him.   We agree with the IAS court that plaintiff's harm was not attributable to some failure by defendants to take precautions required by Labor Law § 240(1) to safeguard plaintiff-and, indeed, no such failure is specified by plaintiff-and, accordingly, that liability may not be imposed upon defendants under that statutory provision (see, Misseritti v. Mark IV Construction Co. Inc., 86 N.Y.2d 487, 634 N.Y.S.2d 35, 657 N.E.2d 1318;  Amato v. State of New York, 241 A.D.2d 400, 660 N.Y.S.2d 576).

Having concluded that the IAS court properly dismissed plaintiff's Labor Law § 240(1) claim, and no issue having been raised on appeal concerning the dismissal of the balance of plaintiff's complaint, it is not necessary for us to address the issues raised by defendants Levy and 5 East 9th Street Owners concerning indemnification or the issue raised by 5 East in its cross-appeal respecting whether it is an owner for purposes of imposition of Labor Law liability.

MEMORANDUM DECISION.