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Desjardins v. Auburn Steel Company, Inc.

Appellate Division of the Supreme Court of New York, Fourth Department
Jul 14, 1992
185 A.D.2d 627 (N.Y. App. Div. 1992)

Opinion

July 14, 1992

Appeal from the Supreme Court, Erie County, Mintz, J.

Present — Callahan, J.P., Green, Lawton, Boehm and Davis, JJ.


Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Because plaintiff sustained his injury when he was struck by a crane and not as the result of a fall from a height or being struck by a falling object, Supreme Court erred in denying defendants' motions to dismiss plaintiff's Labor Law § 240 (1) cause of action (see, Oakes v. Niagara Mohawk Power Corp., 176 A.D.2d 1240). Therefore, plaintiff's Labor Law § 240 (1) cause of action must be dismissed.

The court, however, properly denied defendants' motion for summary judgment dismissing plaintiffs cause of action based on Labor Law § 241 (6). Plaintiff was performing repair work that was clearly within the ambit of section 241 (6) (see, Lozo v Crown Zellerbach Corp., 142 A.D.2d 949). Moreover, plaintiff's failure to plead and prove any violation of a specific regulation is not fatal to his cause of action (see, Nagel v. Metzger, 103 A.D.2d 1, 7).


Summaries of

Desjardins v. Auburn Steel Company, Inc.

Appellate Division of the Supreme Court of New York, Fourth Department
Jul 14, 1992
185 A.D.2d 627 (N.Y. App. Div. 1992)
Case details for

Desjardins v. Auburn Steel Company, Inc.

Case Details

Full title:DARRYL DESJARDINS, Respondent-Appellant, v. AUBURN STEEL COMPANY, INC.…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jul 14, 1992

Citations

185 A.D.2d 627 (N.Y. App. Div. 1992)
586 N.Y.S.2d 45

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