Dupuy v. Hayner Hoyt Corporation , 634 N.Y.S.2d 17 ( 1995 )

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in granting the motion of plaintiff for partial summary judgment on his Labor Law § 240 (1) cause of action and denying defendants’ cross motion for summary judgment dismissing that cause of action. Plaintiff was injured when a fellow worker at ground level lost his grip on one end of a portable concrete conveyor and plaintiff was unable, because of the weight of the concrete on the conveyor, to continue holding the other end above his head. The conveyor struck plaintiff, knocking him down onto the scaffolding on which he was standing. Because plaintiff did not fall from an elevated work site and the object causing his injury was at the same level as plaintiff, Labor Law § 240 (1) does not apply (see, Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841; Maracle v DiFranco, 197 AD2d 877). Thus, we modify the order on appeal by granting defendants’ cross motion for summary judgment dismissing the Labor Law § 240 (1) cause of action and denying plaintiff’s motion. (Appeal from Order of Supreme Court, Onondaga County, Hayes, J.—Labor Law.) Present—Denman, P. J., Pine, Wesley, Balio and Davis, JJ.