Mitchell Samuels, Appellant, v. Jamaica Hospital Corporation et al., Respondents

Mitchell Samuels, Appellant, v Jamaica Hospital Corporation et al., Respondents. [723 NYS2d 207] [MAJORITY] —In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Shaw, J.), entered January 19, 2000, which, upon the granting of the defendants’ motion pursuant to CPLR 4401 for judgment as a matter of law, made at the close of the evidence, is in favor of the defendants and against him dismissing the complaint. Ordered that the judgment is affirmed, with costs. The plaintiff, an elevator mechanic, was allegedly injured when he inhaled fumes from burning metal. He commenced this action against the defendant Jamaica Hospital Corporation, the building owner, and the defendant E.W. Howell, Inc., the general contractor of the job site, alleging, inter alia, that they violated Labor Law § 241 (6) by failing to provide him with a breathing apparatus as required by 12 NYCRR 12-2.8. At the close of the evidence, the Supreme Court granted the defendants’ motion pursuant to CPLR 4401 for judgment in their favor as a matter of law. The plaintiff failed to establish that the defendants breached a nondelegable duty pursuant to Labor Law § 241 (6). There was no testimony that he was working in a confined space or with toxic metals. Therefore, he was not involved in the class of operations that would have required the defendants to provide him with an air line respirator (see, 12 NYCRR 12-2.8). Accordingly, the Supreme Court properly granted the defendants’ motion (see, Szczerbiak v Pilat, 90 NY2d 553, 556). The plaintiff's remaining contentions are without merit. Altman, J. P., Goldstein, McGinity and Schmidt, JJ., concur.