Fontaine v Juniper Assoc.

Fontaine v Juniper Assoc. 2009 NY Slip Op 08695 [67 AD3d 608] November 24, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

William E. Fontaine, Respondent,
v
Juniper Associates et al., Appellants, et al., Defendant.

—[*1] Carol R. Finocchio, New York, for appellants.

DeAngelis & Hafiz, Mount Vernon (Talay Hafiz of counsel), for respondent.

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 and M&T for summary judgment dismissing claims under Labor Law § 240 (1) and § 241 (6) and granted plaintiff's 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 plaintiff's head, had been piled inches from the edge of the flatbed. The court correctly granted plaintiff's 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. Cammon 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]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.