        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

991
CA 13-02035
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND VALENTINO, JJ.


SEYMOUR MILES AND TANISHA MILES,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

BUFFALO STATE ALUMNI ASSOCIATION, INC.,
BUFFALO STATE COLLEGE FOUNDATION HOUSING
CORPORATION, LPCIMINELLI, INC., AND LPCIMINELLI
CONSTRUCTION CORP., DEFENDANTS-RESPONDENTS.


DOLCE PANEPINTO, P.C., BUFFALO (STEPHEN C. HALPERN OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

HODGSON RUSS LLP, BUFFALO (PATRICK J. HINES OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Patrick
H. NeMoyer, J.), entered August 27, 2013. The order, among other
things, granted the cross motion of defendants for summary judgment
dismissing the complaint in its entirety.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this Labor Law and common-law
negligence action seeking damages for injuries sustained by Seymour
Miles (plaintiff) at a construction site for a college dormitory. At
the time of the injury, plaintiff and a coworker were in a dormitory
room, unloading a double sheet of drywall from a wheeled cart. The
remaining drywall on the cart moved and struck them, and the cart also
toppled over and allegedly struck plaintiff, causing him to fall to
the floor and injure his shoulder. We note at the outset that,
although Supreme Court granted in its entirety defendants’ cross
motion for summary judgment dismissing the complaint, plaintiffs do
not contend in their brief that the court erred in granting those
parts of the cross motion with respect to the Labor Law § 200 and
common-law negligence causes of action. We thus deem any issues with
respect thereto abandoned (see Ciesinski v Town of Aurora, 202 AD2d
984, 984).

     We reject plaintiffs’ contention that the court erred in granting
that part of the cross motion with respect to Labor Law § 240 (1). At
the time of the accident, plaintiff was standing on the ground, the
drywall on the cart was not being hoisted or secured, and the cart was
                                 -2-                           991
                                                         CA 13-02035

not being hoisted or otherwise moved vertically (see Davis v Wyeth
Pharms., Inc., 86 AD3d 907, 909). We conclude that plaintiff’s
injuries were not the direct consequence of a failure to provide
blocks or stays to protect against a risk arising from a physically
significant elevation differential; here, the function of such devices
would not have been to protect plaintiff from the effects of gravity
(see Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 663;
Guallpa v Leon D. DeMatteis Constr. Corp., 117 AD3d 614, 615-616). In
our view, defendants established as a matter of law “that the injuries
resulted from a general hazard encountered at a construction site and
were not ‘the direct consequence of a failure to provide’ an adequate
device of the sort enumerated in Labor Law § 240 (1)” (Grygo v 1116
Kings Highway Realty, LLC, 96 AD3d 1002, 1003, lv denied 20 NY3d 859),
and plaintiffs failed to raise a triable issue of fact (see Zuckerman
v City of New York, 49 NY2d 557, 562).

     We likewise conclude that the court properly granted that part of
the cross motion with respect to the Labor Law § 241 (6) cause of
action because the sections of the Industrial Code upon which
plaintiffs rely, i.e., sections 23-2.1 (a) (1) and 23-6.1 (j) (2), are
inapplicable. “A plaintiff asserting a cause of action under Labor
Law § 241 (6) must demonstrate a violation of a rule or regulation of
the Industrial Code which gives a specific, positive command, and is
applicable to the facts of the case” (Rodriguez v D & S Bldrs., LLC,
98 AD3d 957, 959). Here, defendants established as a matter of law
that 12 NYCRR 23-2.1 (a) (1) is inapplicable because the drywall was
in use rather than in storage (see Zamajtys v Cholewa, 84 AD3d 1360,
1362), and that it did not constitute a “[m]aterial pile” within the
meaning of the regulation (see Thompson v BFP 300 Madison II, LLC, 95
AD3d 543, 543-544; Castillo v Starrett City, 4 AD3d 320, 321-322). In
opposition, plaintiffs failed to raise a triable issue of fact (see
Grygo, 96 AD3d at 1003). Finally, the court properly determined that
12 NYCRR 23-6.1, which sets forth the requirements for material
hoisting equipment, is “not applicable in the circumstances of this
case” (Brechue v Town of Wheatfield, 241 AD2d 935, 936, lv denied 94
NY2d 759).




Entered:   October 3, 2014                     Frances E. Cafarell
                                               Clerk of the Court
