Opinion
April 3, 2001.
Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered on or about March 7, 2000, which, to the extent appealed and cross-appealed from, denied plaintiffs' cross motion for partial summary judgment upon their Labor Law § 240(1) claim and granted defendants' cross motion for summary judgment to the extent of dismissing said claim, but denied defendant ELO Organization's cross motion for summary judgment insofar as said cross motion sought dismissal of plaintiffs' common-law negligence claim and their claims pursuant to Labor Law §§ 200 and 241(6), unanimously affirmed, without costs.
Michael S. Bender, for plaintiffs-appellants-respondents.
Before: Nardelli, J.P., Tom, Andrias, Rubin, Saxe, JJ.
Plaintiff was allegedly injured at a construction site when , while working on the bottom part of a ventilation pipe, the top portion of the pipe, secured by a rusty brace, became dislodged and fell upon him. Contrary to plaintiff's argument, injuries sustained by him by reason of the alleged accident are not compensable pursuant to Labor Law § 240(1) since the dislodging of the ventilation pipe was not attributable to the kind of extraordinary elevation-related risk that the statute was intended to guard against but was rather the result of a structural infirmity of a sort routinely encountered during construction site work (see, Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 491).
With regard to the plaintiff's remaining claims, however, as the motion court found, issues of fact preclude an award of summary judgment (see,Zuniga v. Stam Realty, 169 Misc.2d 1004, affd 245 A.D.2d 561, lv denied 91 N.Y.2d 813).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.