Brennan v. Carriage House Motor Cars, Ltd.

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered June 23, 1995, which denied defendants-appellants’ motion for summary judgment dismissing the complaint as against them, unanimously modified, on the law, to the extent of dismissing plaintiffs’ claim under Labor Law § 240 (1) as against defendants-appellants and otherwise affirmed, without costs.

In an action for personal injuries allegedly sustained when plaintiff, self-employed as an independent contractor in the removal and sale of waste oil, was thrown and burned in an explosion which occurred on the premises owned by defendants Richard M. Chapman and Alice Friedland, and leased by defendant Carriage House Motor Cars, Ltd., the IAS Court properly denied defendants-appellants’ motion for summary judgment dismissing the claims of negligence and violations of Labor Law § 200. Contrary to appellants’ contentions, it was not plaintiffs’ burden in opposing the motion to establish proximate cause between the allegedly unsafe condition and the explosion which caused plaintiff’s injuries or demonstrate that appellants had actual or constructive notice of said condition; rather, it was appellants’ burden, as movants, to establish the absence of proximate cause and notice as a matter of law, where plaintiff submitted proof that the waste oil storage tank contained a dangerous mixture of waste oil and gasoline which resulted in an explosion when plaintiff attempted to remove same (Colt v Great Atl. & Pac. Tea Co., 209 AD2d 294).

However, the IAS Court should have dismissed the claim pursuant to Labor Law § 240 (1), as there was no contract for "the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure”. Nor did the injuries complained of result from elevation-related risk within the meaning of the statute (see, Rocovich v Consolidated Edison Co., 78 NY2d 509). Concur — Murphy, P. J., Rosenberger, Rubin, Tom and Mazzarelli, JJ.