DALY v. CITY OF NEW YORK

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

William DALY, Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Respondent,

Cipico Construction Corp., Defendant. The CITY OF NEW YORK, Third-Party Plaintiff-Respondent, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, Third-Party Defendant-Respondent.

Decided: October 27, 1998

Milonas, J.P., Ellerin, Wallach and Tom, JJ. Daniel C. Minc, for Plaintiff-Appellant. Alan G. Krams, for Defendant-Respondent and Third-Party Plaintiff-Respondent. Helman R. Brook, for Third-Party Defendant-Respondent.

Judgment, Supreme Court, New York County (Robert Lippmann, J.), entered January 30, 1998, dismissing an action by a laborer to recover for personal injuries pursuant to Labor Law §§ 240(1) and 241(6), upon the parties' respective motions for summary judgment, unanimously affirmed, without costs.

 The ceiling of the underground steam vault in which plaintiff, a utility company employee, was working at ground level, lubricating a slip joint in order to stop a leak in a steam main, was a completed structure, and its collapse and plaintiff's resultant injury was not due to an elevation-related hazard within the meaning of Labor Law § 240(1) (see, Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 634 N.Y.S.2d 35, 657 N.E.2d 1318;  Fox v. Jenny Eng'g Corp., 122 A.D.2d 532, 505 N.Y.S.2d 270, affd. on other grounds 70 N.Y.2d 761, 520 N.Y.S.2d 750, 514 N.E.2d 1374;  Amato v. State of New York, 241 A.D.2d 400, 660 N.Y.S.2d 576, lv. denied 91 N.Y.2d 805, 668 N.Y.S.2d 560, 691 N.E.2d 632).   In support of his Labor Law § 241(6) claim, plaintiff cites Industrial Code (12 NYCRR § 23-1.7(a)), but he fails to present any evidence that the work he was engaged in was “normally exposed to falling material or objects” (12 NYCRR § 23-1.7[a][1]), and the claim was therefore properly dismissed (see, Amato v. State of New York, id., at 401-402, 660 N.Y.S.2d 576).

MEMORANDUM DECISION.