| Francis v Foremost Contr. Corp. |
| 2008 NY Slip Op 00224 [47 AD3d 672] |
| January 15, 2008 |
| Appellate Division, Second Department |
| Venroy Francis et al., Appellants, v Foremost ContractingCorp. et al., Respondents, et al., Defendant. |
—[*1] Sweetbaum & Sweetbaum, Lake Success, N.Y. (Joel A. Sweetbaum and Marshall D.Sweetbaum of counsel), for respondent Astoria, LLC.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Ruditzky, J.), datedJune 19, 2006, as denied that branch of their cross motion which was for summary judgment onthe issue of liability on the cause of action alleging a violation of Labor Law § 240 (1), andgranted that branch of the motion of the defendant Foremost Contracting Corp., in which thedefendants Astoria Realty, Inc., and Astoria, LLC, joined, which was for summary judgmentdismissing the cause of action alleging a violation of Labor Law § 240 (1) insofar asasserted against them.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the motion of Foremost Contracting Corp., in which the defendants Astoria Realty,Inc., and Astoria, LLC, joined, which was for summary judgment dismissing the cause of actionalleging a violation of Labor Law § 240 (1) insofar as asserted against them, andsubstituting therefor a provision denying that branch of the motion; as so modified, the order isaffirmed insofar as appealed from, without costs or disbursements.
In 1998 the injured plaintiff Venroy Francis (hereinafter the plaintiff) was a [*2]steelworker employed by nonparty Five Star Steel, which had beenhired by the defendant Foremost Contracting Corp. (hereinafter Foremost), the general contractoron a construction project in the Bronx. The defendants Astoria Realty, Inc., and Astoria, LLC(hereinafter together Astoria), and Abraham Scharf were the owners of the subject premises.
The plaintiff was injured as he and several coworkers were unloading a large steel beam froma flatbed truck. The plaintiff, who was standing on the surface of the flatbed truck, attempted touse a cherry picker to unload the beam, but that device apparently was too small to lift the beam.The plaintiff and other workers then used a "long piece of metal" or a "spike" as a lever to pry thebeam off the truck. As the beam was being unloaded, it twisted and struck the plaintiff, knockinghim off the truck. As he lay on the ground, the beam fell from the truck and "hit [him] in theankle."
In 1999 the plaintiff and his wife (hereinafter the plaintiffs) commenced this action againstForemost, Astoria, and Scharf, asserting causes of action pursuant to Labor Law §§200, 240 (1), and § 241 (6). Insofar as is relevant to this appeal, Foremost moved, amongother things, for summary judgment dismissing the complaint and the plaintiffs cross-moved forsummary judgment on the issue of liability on their cause of action pursuant to Labor Law§ 240 (1). The Supreme Court denied that branch of the cross motion which was forsummary judgment on the issue of liability on the cause of action pursuant to Labor Law §240 (1), and granted that branch of Foremost's motion, in which Astoria joined, which was forsummary judgment dismissing the causes of action pursuant to Labor Law § 240 (1) and§ 241 (6) insofar as asserted against them. We modify.
Labor Law § 240 (1) requires owners and contractors to provide workers withappropriate safety devices to protect against "such specific gravity-related accidents as fallingfrom a height or being struck by a falling object that was improperly hoisted or inadequatelysecured" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]; Public Adm'r of Kings County v 8 B.W.,LLC, 40 AD3d 834 [2007]). "Not every worker who falls at a construction site, and notevery object that falls on a worker, gives rise to the extraordinary protections of Labor Law§ 240 (1). Rather, liability is contingent upon the existence of a hazard contemplated insection 240 (1) and the failure to use, or the inadequacy of, a safety device of the kindenumerated therein" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001];see Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914, 916 [1999]; Ross vCurtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). In other words, "[a] plaintiff mustshow that the object fell, while being hoisted or secured, because of the absence orinadequacy of a safety device of the kind enumerated in the statute" (Narducci v ManhassetBay Assoc., 96 NY2d at 268; seeKeaney v City of New York, 24 AD3d 615, 617 [2005]; Turczynski v City of New York, 17AD3d 450 [2005]; Sierzputowski vCity of New York, 14 AD3d 606, 607 [2005]).
Foremost and Astoria failed to make "a prima facie showing of entitlement to judgment as amatter of law, tendering sufficient evidence to demonstrate the absence of any material issues offact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). There exists a triable issueof fact as to whether the defendants were obligated to substitute, in place of the cherry picker andthe "spike," other devices, such as "hoists, stays, ladders, slings, hangers, blocks, pulleys, braces,irons, [or] ropes," in order to prevent the beam from falling on top of the injured plaintiff (LaborLaw § 240 [1]; see Mentesana vBernard Janowitz Constr. Corp., 44 AD3d 721 [2007]; Palacios v Lake Carmel Fire Dept.,Inc., 15 AD3d 461 [2005]; cf.Toefer v Long Is. R.R., 4 NY3d 399, 408 [2005]). Therefore, the Supreme Court erredin granting summary judgment dismissing the cause of action alleging a violation of Labor Law§ 240 (1) insofar as asserted against Foremost and Astoria.[*3]
We note that the contention of Astoria, LLC, regardingthe denial of that branch of its cross motion which was for summary judgment on its cross claimsagainst Foremost for common-law and contractual indemnification is not properly before thisCourt, as it did not appeal from the order (see CPLR 5515). Rivera, J.P., Covello, Balkinand McCarthy, JJ., concur.