Rodriguez v. Margaret Tietz Center for Nursing Care, Inc.

In an action to recover damages for personal injuries, the third-party defendant appeals from so much of an order of the Supreme Court, Queens County (Di Tucci, J.), dated March 1, 1989, as denied its cross motion for partial summary judgment dismissing the claim involving Labor Law § 240 (1). Ordered that the order is affirmed insofar as appealed from, with costs. The record reveals that the plaintiff Gary Rodriguez was injured while working as a roofer for an independent contractor, the third-party defendant Restor Technologies, Inc. (hereinafter Restor). The plaintiff claims he was injured by a falling beam that had been connected to a hoist, which was used to deliver stones to the roof of the six-story building under construction. Restor claims that the plaintiff was not injured by a falling beam, but by a pole, which banged against his knee as he was placing the pole on the ground. Since there exist questions of fact as to how the accident occurred, it cannot be determined whether or not Labor Law § 240 (1) applies to Restor, and, thus, Restor’s cross motion was properly denied (see, Evans v Chelsea Indus. Park, 157 AD2d 830; Zimmer v Chemung County Performing Arts, 65 NY2d 513). Rubin, J. P., Balletta, Rosenblatt and Miller, JJ., concur.