GOLD v. Sheldon Electric Company, Inc., Third-Party Defendant-Respondent.

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

Gregory GOLD, et al., Appellants, v. NAB CONSTRUCTION CORPORATION, Defendant Third-Party Plaintiff-Respondent; Sheldon Electric Company, Inc., Third-Party Defendant-Respondent.

Decided: November 26, 2001

SONDRA MILLER, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT and NANCY E. SMITH, JJ. David P. Kownacki, P.C., New York, N.Y., for appellants. Fiedelman & McGaw, Jericho, N.Y. (Ross P. Masler of counsel), for defendant third-party plaintiff-respondent. Robin, Schepp, Yuhas, Doman & Harris (Mauro Goldberg & Lilling, LLP, Great Neck, N.Y. [Christopher Simone] of counsel), for third-party defendant-respondent.

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, Queens County (Weiss, J.), dated August 4, 2000, as granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action pursuant to Labor Law § 240(1), and denied their cross motion for summary judgment on the issue of liability on that cause of action.

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

Contrary to the plaintiffs' contention, the Supreme Court properly dismissed their cause of action based on Labor Law § 240(1). The metal steps from which the injured plaintiff fell were a “normal appurtenance to the [subway tunnel] and [were] not designed as a safety device to protect him from an elevation-related risk” (Norton v. Park Plaza Owners Corp., 263 A.D.2d 531, 694 N.Y.S.2d 411;  see, Kanarvogel v. Tops Appliance City, 271 A.D.2d 409, 705 N.Y.S.2d 644;  Barrett v. Ellenville Natl. Bank, 255 A.D.2d 473, 680 N.Y.S.2d 634;  see generally, Melber v. 6333 Main St., 91 N.Y.2d 759, 676 N.Y.S.2d 104, 698 N.E.2d 933).

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