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

778
CA 10-01399
PRESENT: SMITH, J.P., CENTRA, FAHEY, GORSKI, AND MARTOCHE, JJ.


JOHN T. GOWANS AND SHERRY BATCHELDER,
PLAINTIFFS-APPELLANTS,

                    V                              MEMORANDUM AND ORDER

OTIS MARSHALL FARMS, INC., DOING BUSINESS AS
MARSHALL FARMS, DEFENDANT-RESPONDENT.
------------------------------------------------
OTIS MARSHALL FARMS, INC., DOING BUSINESS AS
MARSHALL FARMS, THIRD-PARTY PLAINTIFF-APPELLANT,

                    V

GOWANS HOME IMPROVEMENT AND HAROLD GOWANS,
THIRD-PARTY DEFENDANTS-RESPONDENTS.


LAW OFFICES OF MARC JONAS, UTICA (RICHARD A. COHEN OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

CRAMER, SMITH & MILLER, P.C., SYRACUSE (LAUREN M. MILLER OF COUNSEL),
FOR DEFENDANT-RESPONDENT AND THIRD-PARTY PLAINTIFF-APPELLANT.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (GABRIELLE MARDANY
HOPE OF COUNSEL), FOR THIRD-PARTY DEFENDANTS-RESPONDENTS.


     Appeals from an order and judgment (one paper) of the Supreme
Court, Oneida County (Samuel D. Hester, J.), entered April 12, 2010 in
a personal injury action. The order and judgment denied the motion of
plaintiffs for partial summary judgment on their claims pursuant to
Labor Law § 240 (1) and § 241 (6), granted the cross motion of
defendant-third-party plaintiff for partial summary judgment
dismissing plaintiffs’ claims pursuant to Labor Law § 200, § 240 (1)
and § 241 (6), and granted the cross motion of third-party defendants
for summary judgment dismissing the third-party complaint.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously modified on the law by denying those parts of the cross
motion of defendant-third-party plaintiff for summary judgment
dismissing the Labor Law § 240 (1) and § 241 (6) claims and
reinstating those claims and by denying the cross motion of third-
party defendants for summary judgment dismissing the third-party
complaint and reinstating the third-party complaint and as modified
the order and judgment is affirmed without costs.
                                 -2-                           778
                                                         CA 10-01399

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by John T. Gowans (plaintiff) when he allegedly
fell through a hay hole in a barn owned by defendant-third-party
plaintiff, Otis Marshall Farms, Inc., doing business as Marshall Farms
(Otis). We agree with plaintiffs that Supreme Court erred in granting
those parts of the cross motion of Otis for summary judgment
dismissing the Labor Law § 240 (1) and § 241 (6) claims, and we
therefore modify the order and judgment accordingly. We note at the
outset that the court also granted that part of the cross motion of
Otis for summary judgment dismissing the Labor Law § 200 claim, but
plaintiffs failed to address that issue in their brief on appeal and
thus are deemed to have abandoned any contention with respect thereto
(see Olson v Pyramid Crossgates Co., 291 AD2d 706, 708; Ciesinski v
Town of Aurora, 202 AD2d 984).

     The record establishes that, at the time of plaintiff’s accident,
his brother was taking measurements on the upper level of a barn owned
by Otis, and that such measurements were “necessary and incidental” to
the replacement of rotting carrier beams (Bagshaw v Network Serv.
Mgt., 4 AD3d 831, 832; see Mannes v Kamber Mgt., 284 AD2d 310, lv
dismissed 97 NY2d 638). It is undisputed that plaintiff and his
brother were partners of third-party defendant Gowans Home
Improvement, the construction company hired to perform the replacement
job (cf. Gibson v Worthington Div. of McGraw-Edison Co., 78 NY2d 1108,
1109; Fabrizio v City of New York, 306 AD2d 87, 87-88). Plaintiff’s
brother had been instructed to cover the hay hole through which
plaintiff allegedly fell while ascending to the upper level of the
barn in order to speak to his brother.

     We agree with plaintiffs that the court erred in determining that
plaintiff was not entitled to the protection of the Labor Law at the
time of the accident, inasmuch as “[i]t is not necessary that an
employee be actually working on his [or her] assigned duties at the
time of the injury” (Reeves v Red Wing Co., 139 AD2d 935, 936; see
Boncore v Temple Beth Zion, 299 AD2d 953, 954). Indeed, “the relevant
inquiry here is not whether the plaintiff picked up a tool to effect a
repair, but whether he had been hired to take any part in the repair
work” (Campisi v Epos Contr. Corp., 299 AD2d 4, 8). “It is no defense
to [the plaintiff’s] recovery under [the] Labor Law . . . that it was
not necessary for the plaintiff to be [at the location where his
brother was taking the measurements] at the time of the accident in
order to speak to his [brother],” who was his coworker (Birbilis v
Rapp, 205 AD2d 569, 570; see Hagins v State of New York, 81 NY2d 921,
923), and thus plaintiff was entitled to the protections afforded by
Labor Law § 240 (1) and § 241 (6).

     We reject plaintiffs’ further contention, however, that the court
erred in denying their motion for partial summary judgment on the
Labor Law § 240 (1) and § 241 (6) claims. Plaintiff has no
recollection of the accident, and there were no witnesses who observed
it. In any event, there is a triable issue of fact with respect to
the cause of plaintiff’s injuries because the record contains
conflicting expert affidavits on that issue, rendering summary
                                 -3-                           778
                                                         CA 10-01399

judgment inappropriate (see generally Selmensberger v Kaleida Health,
45 AD3d 1435, 1436). Otis submitted the affidavit of a biomedical
engineer who opined that plaintiff’s injuries were not consistent with
the six-foot fall through an unguarded hay hole alleged by plaintiff
to have occurred, while plaintiffs submitted the affidavit of
plaintiff’s treating neurosurgeon, who opined that plaintiff sustained
a severe head injury as a result of falling from a height of
approximately six feet or more (see generally § 240 (1); § 241 (6); 12
NYCRR 23-1.7 [b] [1] [i]).

     Finally, we agree with Otis that the court erred in granting the
cross motion of third-party defendants for summary judgment dismissing
the third-party complaint. The record establishes that there are
triable issues of fact whether plaintiff’s brother, and therefore
third-party defendants, were negligent in either failing to cover the
hay hole or in failing to turn on available lights (see generally
Torrillo v Kiperman, 183 AD2d 821, 821-822). We therefore further
modify the order and judgment accordingly.




Entered:   June 17, 2011                       Patricia L. Morgan
                                               Clerk of the Court
