Brownell v. Blue Seal Feeds, Inc.

Plaintiff commenced this Labor Law and

Addressing first the motion of the Bennett defendants, we conclude that the court properly granted that part of their motion for summary judgment dismissing the Labor Law § 240 (1) cause of action against them inasmuch as “[plaintiff’s fall . . . was not an elevation-related risk that calls for any of the protective devices of the types listed in Labor Law § 240 (1)” (Lessard v Niagara Mohawk Power Corp., 277 AD2d 941 , 941 [2000]; see generally Narducci v Manhasset Bay Assoc., 96 NY2d 259 , 267 [2001]). It is well established that “the surface of a flatbed truck does not constitute an elevated work surface for purposes of Labor Law § 240 (1)” (Plump v Wyoming County, 298 AD2d 886 , 886 [2002]; see Toefer v Long Is. R.R., 4 NY3d 399 , 405 [2005]; Lavore v Kir Munsey Park 020, LLC, 40 AD3d 711 , 712-713 [2007], lv denied 10 NY3d 701 [2008]). Contrary to plaintiffs contention, the fact that he allegedly fell while he was “standing on [a pile of rebar] rather than standing on the bed of the truck does not move this case from one involving the ordinary dangers of a construction site to one involving the special risks protected by Labor Law § 240 (1)” (Berg v Albany Ladder Co., Inc., 40 AD3d 1282 , 1285 [2007], affd 10 NY3d 902 [2008]). Likewise without merit is plaintiffs alternative contention that section 240 (1) applies because the accident was caused by the force of gravity acting upon a falling object, i.e., the

We further conclude that the court properly granted that part of the motion of the Bennett defendants with respect to the Labor Law § 241 (6) cause of action against them inasmuch as the specific Industrial Code section upon which plaintiff relies on appeal does not apply to the facts of this case. 12 NYCRR 23-1.7 (f), entitled “[v]ertical passage,” provides that “[stairways, ramps or runways shall be provided as the means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation in which case ladders or other safe means of access shall be provided.” The stack of rebar is not a “working level above ground requiring a stairway, ramp, or runway under that section” (Lavore, 40 AD3d at 713; see Amantia v Barden & Robeson Corp., 38 AD3d 1167 , 1169 [2007]; Farrell v Blue Circle Cement, Inc., 13 AD3d 1178 , 1179-1180 [2004], lv denied 4 NY3d 708 [2005]). Plaintiff on appeal has abandoned any contention with respect to the remaining alleged violations of the Industrial Code sections set forth in his second amended complaint and plaintiffs bill of particulars in response to the Bennett defendants’ demand therefor, and we therefore do not address them (see McCormick v 257 W. Genesee, LLC, 78 AD3d 1581 , 1583 [2010]; Ciesinski v Town of Aurora, 202 AD2d 984 [1994]). Plaintiff also has abandoned any contentions with respect to the first cause of action against the Bennett defendants, for common-law negligence and the violation of Labor Law § 200.

With respect to the motion of Hertel Steel, we further conclude that the court properly granted those parts of its motion with respect to the Labor Law causes of action against it. By the express terms of Labor Law § 240 (1) and § 241 (6), the nondelegable duties imposed by those statutes apply only to “contractors and owners and their agents.” Similarly, Labor Law § 200 is a codification of “landowners’ and general contractors’ common-law duty to maintain a safe workplace” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 , 505 [1993]). Here, “[i]n the absence of any evidence that [Hertel], which was responsible for [fabricating and delivering [rebar] to the

We agree with plaintiff, however, that the court erred in granting that part of Hertel Steel’s motion for summary judgment dismissing the common-law negligence claim in the first cause of action against Hertel Steel, as well as the fourth cause of action, for common-law negligence, which was asserted solely against it. We therefore modify the order accordingly. Hertel Steel’s own submissions in support of its motion raise issues of fact whether its employees were negligent in the bundling, loading or securing of the rebar, and whether such negligence was a proximate cause of plaintiffs injuries (see Farrington v Bovis Lend Lease LMB, Inc., 51 AD3d 624 , 626 [2008]; Kelarakos v Massapequa Water Dist., 38 AD3d 717 , 719 [2007]). Present— Scudder, EJ., Centra, Fahey, Peradotto and Lindley, JJ.