Opinion
02-06-2015
Andre BANKS, Plaintiff–Appellant, v. LPCIMINELLI, INC., E & M Painting, Inc., City of Buffalo City School District and City of Buffalo Board of Education, Defendants–Respondents.
Collins & Collins Attorneys, LLC, Buffalo (Charles H. Cobb of Counsel), for Plaintiff–Appellant. Hodgson Russ LLP, Buffalo (Ryan J. Lucinski of Counsel), for Defendants–Respondents.
Collins & Collins Attorneys, LLC, Buffalo (Charles H. Cobb of Counsel), for Plaintiff–Appellant.
Hodgson Russ LLP, Buffalo (Ryan J. Lucinski of Counsel), for Defendants–Respondents.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, and VALENTINO, JJ.
Opinion
MEMORANDUM: Plaintiff commenced this Labor Law and common-law negligence action to recover damages for injuries he sustained when he attempted to lift a bundle of insulation to a coworker 10 feet above him and it fell, striking him in the head. We reject plaintiff's contention that Supreme Court erred in denying his motion seeking partial summary judgment on liability under the Labor Law § 240(1) claim. Plaintiff's submissions in support of the motion raised a triable issue of fact whether his own actions were the sole proximate cause of his injuries (see Tomlins v. DiLuna, 84 A.D.3d 1064, 1065, 924 N.Y.S.2d 442 ; see generally Cioffi v. Target Corp., 114 A.D.3d 897, 898–899, 981 N.Y.S.2d 130 ). In particular, there are triable issues of fact whether a boom lift or a scissor lift was readily available at the work site and whether plaintiff knew that he was expected to use the lift to hoist the material but for no good reason chose not to do so (see Tomlins, 84 A.D.3d at 1065, 924 N.Y.S.2d 442 ; see generally Gallagher v. New York Post, 14 N.Y.3d 83, 88, 896 N.Y.S.2d 732, 923 N.E.2d 1120 ).
Contrary to plaintiff's further contention, the court did not err in granting that part of defendants' cross motion seeking dismissal of the Labor Law § 241(6) claim to the extent it was premised upon violations of 12 NYCRR 23–6.1(c) and 23–7.1(c). Inasmuch as the accident did not involve hoisting equipment, defendants established that those regulations were not applicable to the facts of this case (see Toefer v. Long Is. R.R., 4 N.Y.3d 399, 409–410, 795 N.Y.S.2d 511, 828 N.E.2d 614 ; Georgakopoulos v. Shifrin, 83 A.D.3d 659, 660, 920 N.Y.S.2d 383 ). Finally, in the absence of a cross appeal by defendants, we do not address their contention that the court erred in failing to dismiss the Labor Law § 241(6) claim in its entirety (see Harris v. Eastman Kodak Co., 83 A.D.3d 1563, 1564, 921 N.Y.S.2d 766 ; Harmon v. Hotel Syracuse, Inc., 26 A.D.3d 750, 751, 809 N.Y.S.2d 373 ; see generally CPLR 5515 [1 ] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.