Fontaine v. Juniper Associates

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 609 and M&T for summary judgment dismissing claims under Labor Law § 240 (1) and § 241 (6) and granted plaintiffs 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 at ground level while he and coworkers were unloading the lumber by hand. The lumber, stacked at heights above plaintiffs head, had been piled inches from the edge of the flatbed. The court correctly granted plaintiffs motion for summary judgment on the issue of liability under Labor Law § 240 (1), since the accident involved an elevation-related risk within the meaning of the statute, and his injuries were attributable, at least in part, to defendants’ failure to provide proper protection as mandated by the statute (see e.g. Common v City of New York, 21 AD3d 196, 200-201 [2005]). The court also properly found that issues of fact precluded summary dismissal of the section 241 (6) claim to the extent it was based on a violation of Industrial Code (12 NYCRR) § 23-2.1 (a) (2). The evidence raised issues of fact as to whether the lumber had been placed so close to the edge of the platform as to endanger plaintiff. Concur—Mazzarelli, J.P., Nardelli, Catterson, DeGrasse and Roman, JJ.