Desjardins v. Auburn Steel Co.

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 AD2d 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 plaintiff’s 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 AD2d 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 AD2d 1, 7). (Appeals from Order of Supreme Court, Erie County, Mintz, J.—Summary Judgment.) Present—Callahan, J. P., Green, Lawton, Boehm and Davis, JJ.