| Fontaine v Juniper Assoc. |
| 2009 NY Slip Op 08695 [67 AD3d 608] |
| November 24, 2009 |
| Appellate Division, First Department |
| William E. Fontaine, Respondent, v Juniper Associates etal., Appellants, et al., Defendant. |
—[*1] DeAngelis & Hafiz, Mount Vernon (Talay Hafiz of counsel), for respondent.
Order, Supreme Court, Bronx County (Lucy Billings, J.), entered on or about July 24, 2009,which, to the extent appealed from, denied the motion by defendants Juniper, Durst and M&Tfor summary judgment dismissing claims under Labor Law § 240 (1) and § 241 (6)and granted plaintiff's cross motion for summary judgment on his Labor Law § 240 (1)claim, unanimously affirmed, without costs.
Plaintiff was injured when struck by several pieces of lumber that fell from a flatbed truck atground level while he and coworkers were unloading the lumber by hand. The lumber, stacked atheights above plaintiff's head, had been piled inches from the edge of the flatbed. The courtcorrectly granted plaintiff's motion for summary judgment on the issue of liability under LaborLaw § 240 (1), since the accident involved an elevation-related risk within the meaning ofthe statute, and his injuries were attributable, at least in part, to defendants' failure to provideproper protection as mandated by the statute (see e.g. Cammon v City of New York, 21 AD3d 196, 200-201[2005]). The court also properly found that issues of fact precluded summary dismissal of thesection 241 (6) claim to the extent it was based on a violation of Industrial Code (12 NYCRR)§ 23-[*2]2.1 (a) (2). The evidence raised issues of fact asto whether the lumber had been placed so close to the edge of the platform as to endangerplaintiff. Concur—Mazzarelli, J.P., Nardelli, Catterson, DeGrasse and Roman, JJ.