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NEIL PHILLIPS, Appellant, v. CITY OF NEW YORK, Defendant and Third-Party Plaintiff-Respondent, and NEW YORK CITY DEPARTMENT OF SANITATION et al., Respondents. DAG DEE TOOL RENTALS, INC., Third-Party Defendant-Respondent.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The plaintiff, an employee of the third-party defendant, Dag Dee Tool Rentals, Inc., was injured while repairing a "loader" at a landfill owned by the defendant City of New York. The City had retained the defendant Cross Bay Contracting Corp. to manage and operate the landfill. The injury occurred when the blocks the plaintiff was using to support the "drop arm" of the loader, which was at approximately the same level as his shoulder, were dislodged, causing the drop arm to fall on his hand. The Supreme Court, inter alia, granted the defendants' respective motions which were for summary judgment dismissing those causes of action of the complaint which were based on Labor Law § 240 (1) and § 241 (6). We affirm.

It is well settled that Labor Law § 240 (1), which imposes absolute liability, "is addressed to situations in which a worker is exposed to the risk of falling from an elevated worksite or being hit by an object falling from an elevated worksite" (Rocovich v. Consolidated Edison Co., 167 A.D.2d 524, 526, affd 78 N.Y.2d 509). The statute was not designed to encompass the type of routine maintenance work performed by the plaintiff, which is "far removed from the risks associated with the construction or demolition of a building" (Manente v. Ropost, Inc., 136 A.D.2d 681, 682), and that takes place "in a nonconstruction, non-renovation context" (Edwards v. Twenty-Four Twenty-Six Main St. Assocs., 195 A.D.2d 592, 593).

Furthermore, "[a]n object falling from a miniscule 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, 658; see also, Rodriguez v. Tietz Ctr. for Nursing Care, 84 N.Y.2d 841; Corsaro v. Mt. Calvary Cemetery, 214 A.D.2d 950; Carringi v. International Paper Co., 184 A.D.2d 137, 140). Here, the plaintiff was working at ground level on a piece of machinery which was also at ground level, and the drop arm that caused the injury fell, at most, from shoulder height to the level of the plaintiff's hand.

With respect to the cause of action pursuant to Labor Law § 241 (6), the plaintiff was not engaged in "construction work", as defined by the industrial code ( 12 NYCRR 23-1.4 [b] [13]), when he was injured (see, Mosher v. State of New York, 80 N.Y.2d 286; Houde v. Barton, 202 A.D.2d 890). Moreover, in order to support a claim under this section, a plaintiff must allege a violation of a specific "concrete" provision of the industrial code (Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505; Biszick v Ninnie Constr. Corp., 209 A.D.2d 661; Gordineer v. County of Orange, 205 A.D.2d 584). The plaintiff wholly failed to allege a violation of any provision of the industrial code in the complaint. Although the plaintiff alleged violations of the industrial code in his cross motion for summary judgment, the specific provisions relied upon merely established general safety standards (see, 12 NYCRR 23-9.2 [a]) which do not give rise to a nondelegable duty (see, Ross v. Curtis-Palmer Hydro-Elec. Co., supra, at 505; Vernieri v. Empire Realty Co., 219 A.D.2d 593; Gordineer v. County of Orange, supra). In addition, the plaintiff may not rely on 12 NYCRR 23-9.4 (b) (2), as he was not injured while repairing one of the pieces of power equipment enumerated in that provision. Rosenblatt, J.P., Thompson, Pizzuto and Hart, JJ., concur.

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PHILLIPS v. CITY OF NEW YORK
(Jun 17, 1996)