| Harinarain v Walker |
| 2010 NY Slip Op 03873 [73 AD3d 701] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Vikram Harinarain et al., Appellants, v Elizabeth Walkeret al., Respondents. |
—[*1] Longo & D'Apice, Brooklyn, N.Y. (Mark A. Longo and Anthony E. DeLuca of counsel), forrespondents.
In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal, aslimited by their notice of appeal and brief, from so much of an order of the Supreme Court,Kings County (Hinds-Radix, J.), dated March 27, 2009, as denied those branches of their motionwhich were for summary judgment on the issue of liability on their cause of action allegingviolations of Labor Law § 240 (1) and § 241 (6).
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff Vikram Harinarain was working on a demolition project, removing thefire-damaged roof of a building. He and his fellow workers threw the cut-up pieces of roofingand plywood through a hole in the roof to the third floor of the building, from where it wouldeventually be removed.
On the day of the accident, Harinarain was sent to the third floor to get an extension cord soas to enable the workers to use a second saw on the roof. As Harinarain reached to get the cord, apiece of plywood either was thrown through, or fell from, the hole in the roof, and struck hishand, allegedly causing injuries. Harinarain and his wife, suing derivatively, subsequentlycommenced this action to recover damages for, inter alia, violations of Labor Law § 240(1) and § 241 (6). The plaintiffs moved for summary judgment on the issue of liability,and the Supreme Court denied that motion, concluding that there was a triable issue of fact as towhether Harinarain was comparatively negligent.
That branch of the plaintiffs' motion which was for summary judgment on the cause of actionalleging a violation of Labor Law § 240 (1) was properly denied, albeit for a reasondifferent from that stated by the Supreme Court. The plaintiffs failed to make a prima facieshowing that the plywood which allegedly caused Harinarain's injuries was material whichrequired securing within the meaning of Labor Law § 240 (1) (see Roberts v GeneralElec. Co., 97 NY2d 737 [2002]; Narducci v Manhasset Bay Assoc., 96 NY2d 259,268 [2001]; Donnelly v City of NiagaraFalls, 5 AD3d 1103 [2004]).
The Supreme Court properly denied that branch of the plaintiffs' motion which was forsummary judgment on the cause of action alleging a violation of Labor Law § 241 (6).Although the [*2]plaintiffs established, prima facie, theirentitlement to judgment as a matter of law with respect to that alleged violation, the defendantsraised a triable issue of fact as to whether Harinarain was comparatively negligent (seeEdwards v C&D Unlimited, 295 AD2d 310, 311 [2002]; Amirr v Calcagno Constr.Co., 257 AD2d 585 [1999]). Dillon, J.P., Florio, Leventhal and Roman, JJ., concur.