Opinion
September 30, 1994
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Denman, P.J., Green, Fallon, Callahan and Boehm, JJ.
Order unanimously affirmed without costs. Memorandum: Donald Panepinto (plaintiff) was injured when he stepped backward and fell into a hole at the site of the demolition of the Donner-Hanna Coke plant, a facility owned by defendants. When he fell, plaintiff, an employee of Best Wrecking Company, Inc., the contractor for the demolition project, was setting up gauges on acetylene tanks used to cut the steel on structures at the plant site. Supreme Court properly denied plaintiffs' motion for partial summary judgment on the Labor Law § 240 (1) cause of action.
Although plaintiff was engaged in work "necessary and incidental" to the demolition (Mosher v. St. Joseph's Villa, 184 A.D.2d 1000, 1002), his injuries did not occur "because of a difference between the elevation level of the required work and a lower level" (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514) or from a work site that was "itself elevated" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501). Plaintiff was working at ground level and the steel he was to cut was at ground level. The record does not disclose the origin of the hole. There is no evidence that plaintiff's task "exposed [plaintiff] to the type of hazard that the use or placement of the safety devices enumerated in Labor Law § 240 (1) was designed to protect against" (Radka v. Miller Brewing Co., 182 A.D.2d 1111, 1111-1112; see, Maracle v. DiFranco, 197 A.D.2d 877, 878; Kimball v. Fort Ticonderoga Assn., 167 A.D.2d 581, 582, lv dismissed 77 N.Y.2d 989; Staples v. Town of Amherst, 146 A.D.2d 292, 296).