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EYAL OFRI, ET AL., appellants, v. WALDBAUM, INC., defendant third-party plaintiff-respondent; LODATO ENTERPRISES, INC., third-party defendant-respondent.

ORDERED that the plaintiffs' notice of appeal from the order is deemed a premature notice of appeal from the judgment (see, CPLR 5520[c]); and it is further,

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

Immediately prior to demolishing a wall upon which numerous mirrored panels were affixed, the plaintiff Eyal Ofri (hereinafter the plaintiff) allegedly was injured by a falling piece of a broken mirror. The mirrors were mounted on the wall approximately five feet above the floor, and the plaintiff stood directly on the floor as he removed each panel from its mounting frame. Contrary to the plaintiffs' contentions, as the Court of Appeals has now determined, this is not the kind of hazard contemplated by Labor Law 240(1), and thus the Supreme Court properly granted that branch of the defendant's motion which was to dismiss the plaintiffs' cause of action predicated thereon (see, Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, revg 270 A.D.2d 60).

The Supreme Court correctly dismissed the plaintiffs' cause of action predicated upon Labor Law 241(6) as the plaintiff's injuries were not caused by a hazard created by the demolition work, rendering the relied-upon regulation, 12 NYCRR 23-3.3(c), inapplicable (see, Monroe v. City of New York, 67 A.D.2d 89, 100).

The plaintiffs' remaining contentions are without merit.

KRAUSMAN, J.P., S. MILLER, SCHMIDT and ADAMS, JJ., concur.

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OFRI v. WALDBAUM
(Jul 16, 2001)