This opinion is uncorrected and subject to revision before publication in the Official Reports.
2008 NY Slip Op 08161
Decided on October 28, 2008
No. 218 SSM 25
Submitted by Matthew W. Naparty, for appellants.
Submitted by David P. Kownacki, for respondents.
The order of the Appellate Division should be reversed, with costs, plaintiffs' cross motion for summary judgment on their Labor Law § 240(1) claim denied, defendants' motion for summary judgment dismissing the Labor Law § 240(1) claim granted, and the certified question answered in the negative.
No Labor Law § 240(1) liability exists where an injury results from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first place (see Nieves v Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914 [1999]; Melber v 6333 Main St., 91 NY2d 759, 763-64 [1998]). Here, the presence of two unconnected pipes protruding from a wall was not "the risk which brought about the need for the [ladder] in the first instance" (Nieves, 93 NY2d at 916 [citations omitted]), but was one of "the usual and ordinary dangers at a construction site" (id.) to which the "extraordinary protections of Labor Law 240(1) [do not] extend" (id. at 915).
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On review of submissions pursuant to section 500.11 of the Rules, order reversed, with costs, plaintiffs' cross motion for summary judgment on their Labor Law § 240(1) claim denied, defendants' motion for summary judgment dismissing the Labor Law § 240(1) claim granted, and certified question answered in the negative, in a memorandum. Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.
Decided October 28, 2008