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ERIC S. BETTERIDGE, PLAINTIFF-RESPONDENT, V. TOPS MARKETS, INC., DEFENDANT-APPELLANT.

DIXON & HAMILTON, LLP, GETZVILLE (DENNIS P. HAMILTON OF COUNSEL), FOR DEFENDANT-APPELLANT. MORAN & KUFTA, P.C., ROCHESTER (MARK J. VALERIO OF COUNSEL), FOR PLAINTIFF-RESPONDENT. Appeal from an order of Supreme Court, Erie County (Sedita, Jr., J.), entered February 12, 2001, which granted plaint.....

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DIXON & HAMILTON, LLP, GETZVILLE (DENNIS P. HAMILTON OF COUNSEL), FOR DEFENDANT-APPELLANT. MORAN & KUFTA, P.C., ROCHESTER (MARK J. VALERIO OF COUNSEL), FOR PLAINTIFF-RESPONDENT. Appeal from an order of Supreme Court, Erie County (Sedita, Jr., J.), entered February 12, 2001, which granted plaintiff’s motion for partial summary judgment and denied defendant’s cross motion for summary judgment. It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied, the cross motion is granted and the Labor Law ?§ 240 (1) claim is dismissed. Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained while replacing a surveillance camera unit mounted at the top of a 30- to 40-foot pole in a parking lot owned by defendant. Supreme Court erred in granting plaintiff’s motion for partial summary judgment on liability on the Labor Law ?§ 240 (1) claim and denying defendant’s cross motion for summary judgment dismissing that claim. Plaintiff testified at his deposition that he performed his work from a boom lift supplied by defendant. After disconnecting the wires and removing the four bolts that secured the camera unit to the pole, plaintiff bent down to place the bolts on the floor of the bucket. A gust of wind knocked the lift into the pole, causing the camera unit to fall and strike plaintiff in the head. The record establishes that the camera unit was a mere one foot above plaintiff’s head, a de minimis elevation differential (see, Narducci v Manhasset Bay Assocs., 96 NY2d 259, 269-270). We therefore reverse the order, deny plaintiff’s motion, grant defendant’s cross motion and dismiss the Labor Law ?§ 240 (1) claim.

Entered: March 15, 2002

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