Bonaparte v. Niagara Mohawk Power Corp. , 591 N.Y.S.2d 576 ( 1992 )

Mercure, J.

Appeal from an order of the Supreme Court (Duskas, J.), entered May 22, 1991 in St. Lawrence County, which, inter alia, denied plaintiff’s motion for partial summary judgment.

Plaintiff commenced this action to recover for injuries he sustained when his foot became entangled in an electrical cable and he fell backward onto the surface of his work site, an elevated scaffold. Following discovery, the parties cross-moved for partial summary judgment on the issue of defendants’ liability under Labor Law § 240 (1). Supreme Court denied the motion and cross motion and plaintiff appeals.^*

"Labor Law § 240 (1) imposes a nondelegable duty and absolute liability upon owners or contractors for failing to provide safety devices necessary for protection to workers subject to the risks inherent in elevated work sites who sustain injuries proximately caused by that failure” (Jock v Fien, 80 NY2d 965, 968 [emphasis supplied] [citations omitted]; see, Rocovich v Consolidated Edison Co., 78 NY2d 509). Here, although plaintiff was exposed to an elevation-related hazard as a result of his work on the scaffold, his injuries were not proximately caused by a failure to provide safety devices necessary to protect him from that risk. To the contrary, plaintiff only fell to the surface of the scaffold, and not from it, and his injuries were proximately caused by a walking surface which was cluttered with construction equipment, materials and debris, a risk wholly unrelated to elevation (see, Rocovich v Consolidated Edison Co., supra; Tuohey v Gainsborough Studios, 183 AD2d 636; Springer v Clark Publ. Co., 171 AD2d 914, 915). In the absence of any evidence that the scaffold was not properly constructed or failed to "perform^ its function of elevating and supporting the workers and their materials” (Springer v Clark Publ. Co., supra, at 915), Supreme Court should have granted defendants’ cross motion and dismissed the Labor Law § 240 cause of action.

Yesawich Jr. and Crew III, JJ., concur.

* Defendants’ failure to file a notice of appeal does not prevent us from considering whether Supreme Court erred in denying their motion for partial summary judgment (see, CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 111).