Sandersv.TDX Construction Corp.

Appellate Division of the Supreme Court of New York, Second DepartmentApr 11, 1994
203 A.D.2d 353 (N.Y. App. Div. 1994)
203 A.D.2d 353612 N.Y.S.2d 915

April 11, 1994

Appeal from the Supreme Court, Queens County (Rutledge, J.).

Ordered that the order is affirmed, with one bill of costs.

Contrary to the plaintiff's contention, the Supreme Court correctly determined that he could not recover against the defendant TDX Construction Corp. (hereinafter TDX) under Labor Law § 200, since he was injured through the dangerous condition which he had undertaken to eliminate (see, Kowalsky v Conreco Co., 264 N.Y. 125; McCullum v Barrington Co. 309 56th St. Co., 192 A.D.2d 489). In addition, there is no evidence that TDX exercised supervisory control or had any input into how the work was to be performed (see, Lombardi v Stout, 80 N.Y.2d 290, 295).

Further, the plaintiff does not have a cause of action under Labor Law § 240 (1) because his work did not involve the contemplated elevation-related hazards for which that section was designed and his alleged injuries did not directly flow from the effects of the force of gravity (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500; Rocovich v Consolidated Edison Co., 167 A.D.2d 524, affd 78 N.Y.2d 509).

Finally, the plaintiff's allegations are insufficient to give rise to a triable claim for damages under Labor Law § 241 (6) (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra, at 502; Simon v Schenectady N. Cong. of Jehovah's Witnesses, 132 A.D.2d 313). Sullivan, J.P., Joy, Hart and Krausman, JJ., concur.