SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

990
CA 16-00252
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ.


WILLIAM J. KUHN, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

WILLIAM GIOVANNIELLO AND LORRAINE GIOVANNIELLO,
DEFENDANTS-RESPONDENTS.


PULOS AND ROSELL, LLP, HORNELL (WILLIAM W. PULOS OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

LAW OFFICES OF JOHN TROP, ROCHESTER (TIFFANY D’ANGELO OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Steuben County (Peter
C. Bradstreet, A.J.), entered May 7, 2015. The order granted the
motion of defendants for summary judgment, dismissed the complaint and
denied the cross motion of plaintiff for partial summary judgment.

     It is hereby ORDERED that the order so appealed from is affirmed
without costs.

     Memorandum: In this Labor Law § 240 (1) action, plaintiff seeks
damages for injuries he allegedly sustained while he was removing and
replacing a sewer pipe in the basement of defendants’ pizzeria.
Contrary to plaintiff’s contention, Supreme Court properly granted
defendants’ motion for summary judgment dismissing the complaint and
denied plaintiff’s cross motion for partial summary judgment on the
issue of liability. According to plaintiff, while standing at ground
level, he was struck in the shoulder by a falling pipe that weighed
approximately 60 pounds. “Liability may . . . be imposed under [Labor
Law § 240 (1)] only where the ‘plaintiff’s injuries were the direct
consequence of a failure to provide adequate protection against a risk
arising from a physically significant elevation differential’ ”
(Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 97, rearg denied
25 NY3d 1195, quoting Runner v New York Stock Exch., Inc., 13 NY3d
599, 603). Although there is conflicting deposition testimony
concerning the exact elevation of the pipe, it is undisputed that the
pipe was, at most, one foot above plaintiff’s head, and that the pipe
was always within his reach. We therefore conclude that plaintiff’s
injury did not fall within the scope of section 240 (1) inasmuch as
“any height differential between plaintiff and the [pipe] that fell on
him was de minimis” (Joseph v Lakeside Bldrs. & Devs., 292 AD2d 840,
841; see Capparelli v Zausmer Frisch Assoc., 96 NY2d 259, 269-270;
Christiansen v Bonacio Constr., Inc., 129 AD3d 1156, 1158-1159).
                                 -2-                           990
                                                         CA 16-00252

     All concur except WHALEN, P.J., and PERADOTTO, J., who dissent in
part and vote to modify in accordance with the following memorandum:
We respectfully dissent in part. Unlike the majority, we cannot
conclude that the elevation differential here was de minimis and that
plaintiff is thus deprived of the protection of Labor Law § 240 (1).
Plaintiff sustained an injury when a section of iron sewer pipe that
he was engaged to cut and replace broke loose, fell, and struck him in
the shoulder. Defendants submitted evidence that the section of pipe
that fell was five to seven feet long and weighed between 60 and 80
pounds. In our view, plaintiff’s “activity clearly posed a
significant risk to [his] safety due to the position of the heavy
[pipe] above [his head], even if such elevation differential was
slight, and [it] was thus a task where a . . . securing device of the
kind enumerated in the statute was . . . necessary and expected”
(Cardenas v One State St., LLC, 68 AD3d 436, 437; see Zimmer v Town of
Lancaster Indus. Dev. Agency, 125 AD3d 1315, 1316). Indeed, it is
undisputed that, earlier in the project, plaintiff had used such a
securing device, i.e., straps, to protect himself from the risk of a
pipe falling and striking him. The evidence was thus sufficient to
establish as a matter of law that “plaintiff’s injuries were the
direct consequence of a failure to provide adequate protection against
a risk arising from a physically significant elevation differential”
(Runner v New York Stock Exch., Inc., 13 NY3d 599, 603). We would
therefore modify the order by denying that part of defendants’ motion
seeking summary judgment dismissing the Labor Law § 240 (1) cause of
action and reinstating that cause of action.

     We join the majority, however, in affirming that part of the
order denying plaintiff’s cross motion seeking partial summary
judgment on Labor Law § 240 (1) liability, inasmuch as defendants
submitted evidence that the straps that had previously been used on
the project remained available at the jobsite and that plaintiff did
not use them to secure the pipe that fell and struck him. That
evidence raised triable issues of fact whether plaintiff’s conduct was
the sole proximate cause of the accident (see Cahill v Triborough
Bridge & Tunnel Auth., 4 NY3d 35, 39-40; Fazekas v Time Warner Cable,
Inc., 132 AD3d 1401, 1403-1404).




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court