| Farrington v Bovis Lend Lease LMB, Inc. |
| 2008 NY Slip Op 04312 [51 AD3d 624] |
| May 6, 2008 |
| Appellate Division, Second Department |
| Gerard Farrington, Respondent, v Bovis Lend Lease LMB,Inc., et al., Appellants. (And a Third-Party Action.) |
—[*1] Hitchcock & Cummings, LLP, New York, N.Y. (Christopher B. Hitchcock of counsel), forappellants Feldman Lumber, Feldman Lumber Industries, Inc., and Samuel Feldman Lumber Co.,Inc. Duffy, Duffy & Burdo, Uniondale, N.Y. (James Wilkens and Mary Ellen Duffy of counsel),for respondent.
In an action to recover damages for personal injuries, the defendants Bovis Lend Lease LMB,Inc., Columbia University, and Trustees of Columbia University in the City of New York appeal,as limited by their brief, from so much of an order of the Supreme Court, Kings County(Schmidt, J.), dated May 17, 2007, as denied that branch of their motion which was for summaryjudgment dismissing the Labor Law § 240 (1) cause of action insofar as asserted againstthem, and the defendants Feldman Lumber, Feldman Lumber Industries, Inc., and SamuelFeldman Lumber Co., Inc., separately appeal from so much of the same order as denied thosebranches of their separate motion which were for summary judgment dismissing thecommon-law negligence and Vehicle and Traffic Law § 388 (1) causes of action insofar asasserted against them.
Ordered that the order is affirmed, with one bill of costs.
On September 25, 2002 the plaintiff Gerard Farrington, employed by Universal BuildersSupply, Inc. (hereinafter UBS), was working at property owned by the defendant Columbia [*2]University that was undergoing renovations. The constructionproject was managed by the defendant Bovis Lend Lease LMB, Inc. The plaintiff was workingwith a coworker unloading stacked wooden planks from a flatbed truck owned and loaded by thedefendant Feldman Lumber. The wooden planks were located on top of stacks of plywood, andthe top of the truck load was approximately seven feet high. The planks were longer than theplywood and extended out and over the base of plywood. The plaintiff's coworker, who stood onthe back of the truck, angled the planks down and slid them off the truck to the plaintiff as heworked on the ground stacking them into a pile. As the plaintiff was bent over, some of theplanks fell off the truck and struck him.
The plaintiff commenced this action against Feldman Lumber, Feldman Lumber Industries,Inc., and Samuel Feldman Lumber Co., Inc. (hereinafter collectively the Feldman defendants)and Bovis Lend Lease LMB, Inc., Columbia University, and Trustees of Columbia University inthe City of New York (hereinafter collectively the Bovis defendants) alleging common-lawnegligence and violations of Labor Law §§ 200, 240 (1) and § 241 (6), andVehicle and Traffic Law § 388 (1). The Bovis defendants commenced a third-party actionagainst UBS, the plaintiff's employer, which was later discontinued.
The Supreme Court denied that branch of the Bovis defendants' motion which was forsummary judgment dismissing the plaintiff's Labor Law § 240 (1) cause of action insofaras asserted against them and denied those branches of the Feldman defendants' motion whichwere for summary judgment dismissing the common-law negligence and Vehicle and TrafficLaw 388 (1) causes of action insofar as asserted against them. We affirm.
The Bovis defendants failed to establish their prima facie entitlement to judgment as a matterof law with respect to the plaintiff's Labor Law § 240 (1) cause of action. Although LaborLaw § 240 (1) generally does not apply when construction workers are injured by materialwhich falls as it is being loaded onto or unloaded from a truck (see Landa v City of New York, 17AD3d 180, 181 [2005]; Rice v Board of Educ. of City of N.Y., 302 AD2d 578, 580[2003]; Cabezas v Consolidated Edison, 296 AD2d 522, 523 [2002]), in the instantmatter there are material issues of fact as to whether there was an elevation-related risk posed bythe position of the planks when they fell and struck the plaintiff and whether the Bovisdefendants were obligated to provide additional safety devices to secure the planks while theywere being unloaded (see Francis vForemost Contr. Corp., 47 AD3d 672 [2008]; Mentesana v Bernard Janowitz Constr. Corp., 44 AD3d 721[2007]; Kobetitsch v P.M. Maintenance, 308 AD2d 510, 512 [2003]). Accordingly, weneed not consider the papers submitted by the plaintiff in opposition to the Bovis defendants'motion.
The Feldman defendants failed to demonstrate their entitlement to judgment as a matter oflaw with respect to the common-law negligence cause of action by establishing that the actions oftheir employees in loading the truck did not create an unreasonable risk of harm that was aproximate cause of the plaintiff's injuries (see Marano v Commander Elec., Inc., 12 AD3d 571, 572-573[2004]; Mennerich v Esposito, 4AD3d 399, 400 [2004]). Although they point to the plaintiff's deposition testimony that theplanks stayed together after the band holding the stack together was removed, and thus infer thatthe planks were properly bundled, the Feldman defendants presented no evidence to demonstratethat the truck was loaded properly by its employees. Additionally, the record contains evidencethat the manner in which the Feldman defendants' employees loaded the truck may have causedthe planks to be unstable and at risk to fall. Thus, we need not consider the plaintiff's opposition.[*3]
The Feldman defendants' arguments that the Vehicle andTraffic Law § 388 (1) cause of action was barred are raised for the first time on appeal, andtherefore we decline to reach them (seeMazzola v City of New York, 32 AD3d 906, 907 [2006]; Ealey v City of New York, 16 AD3d543, 544 [2005]). Rivera, J.P., Skelos, Santucci and Belen, JJ., concur.