Kuhn v. Giovanniello , 43 N.Y.S.3d 628 ( 2016 )

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 [2015], rearg denied 25 NY3d 1195 [2015], quoting Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). 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 [2002]; see Capparelli v Zausmer Frisch Assoc., 96 NY2d 259, 269-270 [2001]; Christiansen v Bonacio Constr., Inc., 129 AD3d 1156, 1158-1159 [2015]).

All concur except Whalen, P.J., and Peradotto, J.,

who dissent in part and vote to modify in accordance with the following memorandum.