Chiarello v. J&D Leasing Co.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered October 25, 2000, which, insofar as appealed from, denied plaintiffs motion for summary judgment on his cause of action under Labor Law § 240 (1) and granted defendants’ cross motions for summary judgment dismissing that cause of action, unanimously affirmed, without costs. Plaintiff, a truck driver in the employ of a supplier of electrical materials, was injured while delivering a heavy copper reel to the subcontractor hired to do the electrical work on a construction project. According to plaintiff, he rolled the reel to the truck’s elevated tailgate, whereupon the tailgate collapsed, sending him four feet to the ground. The IAS court correctly held that, as a matter of law, plaintiff was neither among the class of workers (see Gentile v New York City Hous. Auth., 228 AD2d 296, lv dismissed 89 NY2d 981; Agli v Turner Constr. Co., 246 AD2d 16, 21-23) nor performing the type of work (see Dilluvio v City of New York, 264 AD2d 115, 117-118 [affd 95 NY2d 928], citing, inter alia, DePuy v Sibley, Lindsay & Curr Co., 225 AD2d 1069; see also Samuel v A.T.P. Dev. Corp., 276 AD2d 685, 686, lv denied 96 NY2d 708) that Labor Law § 240 (1) is intended to protect. Concur — Nardelli, J.P., Mazzarelli, Saxe and Marlow, JJ.