In Van Slyke, there are reasons other than the absence of a fall from an elevated height which could have rendered Labor Law § 240 (1) inapplicable.Summary of this case from Dougherty v. State of New York
Decided October 20, 1983
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, GEORGE G. INGLEHART, JR., J.
Richard D. Ryan for plaintiff-appellant.
Douglas H. Young for Niagara Mohawk Power Corporation, respondent.
Hilbert I. Greene for General Cable Corporation, respondent and third-party plaintiff-appellant.
John F. Gates for New York Telephone Company, third-party defendant-respondent.
On plaintiff's appeal in appeal No. 1, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs.
We agree with the Appellate Division that plaintiff's design defect cause of action must fail for lack of proof that defendant General Cable Corp. had reason to know of the increased danger by virtue of the operator's storage of a tool in a particular manner (see Robinson v Reed-Prentice, 49 N.Y.2d 471, 479; Micallef v Miehle Co., 39 N.Y.2d 376, 386).
On plaintiff's appeals in appeals Nos. 2, 3 and 4, appeals dismissed, without costs, upon the ground that plaintiff is not a party aggrieved by the orders of the Appellate Division (CPLR 5511). On defendant General Cable Corp.'s cross appeal in appeal No. 4, cross appeal dismissed, without costs, on the court's own motion, as academic.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur in memorandum.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]):
On appeal No. 1, order, insofar as appealed from, affirmed, with costs.
On appeals Nos. 2, 3 and 4, plaintiff's appeals dismissed, without costs.
On appeal No. 4, defendant General Cable Corporation's appeal dismissed, without costs.