| Gowans v Otis Marshall Farms, Inc. |
| 2011 NY Slip Op 05330 [85 AD3d 1704] |
| June 17, 2011 |
| Appellate Division, Fourth Department |
| John T. Gowans et al., Appellants, v Otis Marshall Farms, Inc.,Doing Business as Marshall Farms, Respondent/Third-Party Plaintiff-Appellant. Gowans HomeImprovement and Harold Gowans, Third-PartyDefendants-Respondents. |
—[*1] Cramer, Smith & Miller, P.C., Syracuse (Lauren M. Miller of counsel), fordefendant-respondent and Third-Party plaintiff-appellant. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Gabrielle Mardany Hope of counsel), forThird-Party defendants-respondents.
Appeals from an order and judgment (one paper) of the Supreme Court, Oneida County(Samuel D. Hester, J.), entered April 12, 2010 in a personal injury action. The order andjudgment denied the motion of plaintiffs for partial summary judgment on their claims pursuantto Labor Law § 240 (1) and § 241 (6), granted the cross motion ofdefendant-third-party plaintiff for partial summary judgment dismissing plaintiffs' claimspursuant to Labor Law §§ 200, 240 (1) and § 241 (6), and granted the crossmotion of third-party defendants for summary judgment dismissing the third-party complaint.
It is hereby ordered that the order and judgment so appealed from is unanimously modifiedon the law by denying those parts of the cross motion of defendant-third-party plaintiff forsummary judgment dismissing the Labor Law § 240 (1) and § 241 (6) claims andreinstating those claims and by denying the cross motion of third-party defendants for summaryjudgment dismissing the third-party complaint and reinstating the third-party complaint and asmodified the order and judgment is affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byJohn T. Gowans (plaintiff) when he allegedly fell through a hay hole in a barn owned by [*2]defendant/third-party plaintiff, Otis Marshall Farms, Inc., doingbusiness as Marshall Farms (Otis). We agree with plaintiffs that Supreme Court erred in grantingthose parts of the cross motion of Otis for summary judgment dismissing the Labor Law §240 (1) and § 241 (6) claims, and we therefore modify the order and judgment accordingly.We note at the outset that the court also granted that part of the cross motion of Otis for summaryjudgment dismissing the Labor Law § 200 claim, but plaintiffs failed to address that issuein their brief on appeal and thus are deemed to have abandoned any contention with respectthereto (see Olson v Pyramid Crossgates Co., 291 AD2d 706, 708 [2002]; Ciesinski vTown of Aurora, 202 AD2d 984 [1994]).
The record establishes that, at the time of plaintiff's accident, his brother was takingmeasurements on the upper level of a barn owned by Otis, and that such measurements were"necessary and incidental" to the replacement of rotting carrier beams (Bagshaw v Network Serv. Mgt., 4AD3d 831, 832 [2004]; see Mannes v Kamber Mgt., 284 AD2d 310 [2001], lvdismissed 97 NY2d 638 [2001]). It is undisputed that plaintiff and his brother were partnersof third-party defendant Gowans Home Improvement, the construction company hired to performthe replacement job (cf. Gibson v Worthington Div. of McGraw-Edison Co., 78 NY2d1108, 1109 [1991]; Fabrizio v City of New York, 306 AD2d 87, 87-88 [2003]).Plaintiff's brother had been instructed to cover the hay hole through which plaintiff allegedly fellwhile ascending to the upper level of the barn in order to speak to his brother.
We agree with plaintiffs that the court erred in determining that plaintiff was not entitled tothe protection of the Labor Law at the time of the accident, inasmuch as "[i]t is not necessary thatan employee be actually working on his [or her] assigned duties at the time of the injury"(Reeves v Red Wing Co., 139 AD2d 935, 936 [1988]; see Boncore v Temple BethZion, 299 AD2d 953, 954 [2002]). Indeed, "the relevant inquiry here is not whether theplaintiff picked up a tool to effect a repair, but whether he had been hired to take any part in therepair work" (Campisi v Epos Contr. Corp., 299 AD2d 4, 8 [2002]). "It is no defense to[the plaintiff's] recovery under [the] Labor Law . . . that it was not necessary for theplaintiff to be [at the location where his brother was taking the measurements] at the time of theaccident in order to speak to his [brother]," who was his coworker (Birbilis v Rapp, 205AD2d 569, 570 [1994]; see Hagins v State of New York, 81 NY2d 921, 923 [1993]), andthus plaintiff was entitled to the protections afforded by Labor Law § 240 (1) and §241 (6).
We reject plaintiffs' further contention, however, that the court erred in denying their motionfor partial summary judgment on the Labor Law § 240 (1) and § 241 (6) claims.Plaintiff has no recollection of the accident, and there were no witnesses who observed it. In anyevent, there is a triable issue of fact with respect to the cause of plaintiff's injuries because therecord contains conflicting expert affidavits on that issue, rendering summary judgmentinappropriate (see generallySelmensberger v Kaleida Health, 45 AD3d 1435, 1436 [2007]). Otis submitted theaffidavit of a biomedical engineer who opined that plaintiff's injuries were not consistent with thesix-foot fall through an unguarded hay hole alleged by plaintiff to have occurred, while plaintiffssubmitted the affidavit of plaintiff's treating neurosurgeon, who opined that plaintiff sustained asevere head injury as a result of falling from a height of approximately six feet or more (seegenerally Labor Law § 240 [1]; § 241 [6]; 12 NYCRR 23-1.7 [b] [1] [i]).
Finally, we agree with Otis that the court erred in granting the cross motion of third-partydefendants for summary judgment dismissing the third-party complaint. The record establishesthat there are triable issues of fact whether plaintiff's brother, and therefore third-partydefendants, were negligent in either failing to cover the hay hole or in failing to turn on availablelights (see generally Torrillo v Kiperman, 183 AD2d 821, 821-822 [1992]). We thereforefurther modify the order and judgment accordingly. Present—Smith, J.P., Centra, Fahey,Gorski and Martoche, JJ.