Panepinto v. L.T.V. Steel Co.

—Order unanimously affirmed without costs. Memorandum: Donald Panepinto (plaintiff) was injured when he stepped backward and fell into a hole at the site of the demolition of the Donner-Hanna Coke plant, a facility owned by defendants. When he fell, plaintiff, an employee of Best Wrecking Company, Inc., the contractor for the demolition project, was setting up gauges on acetylene tanks used to cut the steel on structures at the plant site. Supreme Court properly denied plaintiffs’ motion for partial summary judgment on the Labor Law § 240 (1) cause of action. Although plaintiff was engaged in work "necessary and incidental” to the demolition (Mosher v St. Joseph’s Villa, 184 AD2d 1000, 1002), his injuries did not occur "because of a difference between the elevation level of the required work and a lower level” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514) or from a work site that was "itself elevated” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501). Plaintiff was working at ground level and the steel he was to cut was at ground level. The record does not disclose the origin of the hole. There is no evidence that plaintiff’s task "exposed [plaintiff] to the type of hazard that the use or placement of the safety devices enumerated in Labor Law § 240 (1) was designed to protect against” (Radka v Miller Brewing Co., 182 AD2d 1111, 1111-1112; see, Maracle v Di-Franco, 197 AD2d 877, 878; Kimball v Fort Ticonderoga Assn., 167 AD2d 581, 582, lv dismissed 77 NY2d 989; Staples v Town 1007 of Amherst, 146 AD2d 292, 296). (Appeal from Order of Supreme Court, Erie County, Flaherty, J.—Summary Judgment.) Present—Denman, P. J., Green, Fallon, Callahan and Boehm, JJ.