SIMON v. CITY OF NEW YORK

ORDERED that the order is affirmed, with costs.

The plaintiff was employed in the construction of a tunnel and was injured when a railroad car, also called a "muck car", derailed inside the tunnel and partially crushed him against another muck car. The plaintiff asserted, inter alia, a cause of action to recover damages under Labor Law § 240 Lab.(1), based upon the fact that when the muck car derailed, it had a vertical fall of 5 1/2 inches.

Labor Law § 240 Lab.(1) is applicable to "such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" ( Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501: see also, Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509). It is well settled that "[a]n object falling from a minuscule height is not the type of elevation-related injury that this statute was intended to protect against" ( Schreiner v. Cremosa Cheese Corp., 202 A.D.2d 657, 657-658). Although the plaintiff alleges that the defendants failed to employ proper safety devices to prevent the muck car from derailing, the injury-producing incident is nevertheless outside the scope of Labor Law § 240 Lab.(1) ( see, Smith v. New York State Elec. Gas Corp., 82 N.Y.2d 781). The plaintiff's injuries did not result from the type of elevation-related risk contemplated by the statute, and the Supreme Court properly dismissed the cause of action to recover damages under Labor Law § 240 Lab.(1) ( see, Melber v. 6333 Main St., 91 N.Y.2d 759; Miseritti v. Mark IV Constr. Co., 86 N.Y.2d 487).

S. MILLER, J.P., SANTUCCI, SULLIVAN, and FLORIO, JJ., concur.