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

930
CA 12-00329
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


RICHARD BRUCE, PLAINTIFF-RESPONDENT-APPELLANT,

                    V                               MEMORANDUM AND ORDER

ACTUS LEND LEASE, DEFENDANT-APPELLANT-RESPONDENT.


NEWMAN MYERS KREINES GROSS HARRIS, P.C., NEW YORK CITY (CHARLES D.
COLE, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT.

STANLEY LAW OFFICES, LLP, SYRACUSE (ROBERT A. QUATTROCCI OF COUNSEL),
FOR PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Jefferson County (Hugh A. Gilbert, J.), dated August 25, 2011. The
order denied plaintiff’s motion for partial summary judgment and
denied defendant’s cross motion for summary judgment.

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

     Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action seeking damages for injuries that he allegedly
sustained when a roof truss that he was securing to a building under
construction broke apart, striking him and knocking him off a ladder.
The truss broke apart when the hoist to which it was attached was
raised prematurely. We conclude that Supreme Court properly denied
both plaintiff’s motion for partial summary judgment on the Labor Law
§ 240 (1) claim and defendant’s cross motion for summary judgment
dismissing that claim. A plaintiff is entitled to summary judgment
under Labor Law § 240 (1) by establishing that he or she was “subject
to an elevation-related risk, and [that] the failure to provide any
safety devices to protect the worker from such a risk [was] a
proximate cause of his or her injuries” (Peters v Kissling Interests,
Inc., 63 AD3d 1519, 1520, lv denied 13 NY3d 903, citing Striegel v
Hillcrest Hgts. Dev. Corp., 100 NY2d 974, 978). A defendant is
entitled to summary judgment dismissing a Labor Law § 240 (1) cause of
action or claim by establishing that a statutory violation did not
occur, an alleged statutory violation was not a proximate cause of the
accident, or the plaintiff’s conduct was the sole proximate cause of
the accident (see generally Blake v Neighborhood Hous. Servs. of N.Y.
City, 1 NY3d 280, 289 n 8).

     Here, we conclude on the record before us that plaintiff was not
injured based on the “falling object” theory of recovery. Indeed,
                                 -2-                           930
                                                         CA 12-00329

because it is undisputed that the truss was rising when it struck
plaintiff, the alleged injury could not have been the result of “the
application of the force of gravity to the [truss]” (Runner v Stock
Exch., Inc., 13 NY3d 599, 604; see Brownell v Blue Seal Feeds, Inc.,
89 AD3d 1425, 1427). We nevertheless conclude that there is an issue
of fact on the record before us with respect to the “falling worker”
theory of recovery. More specifically, there are issues of fact under
that theory of recovery “concerning the adequacy of the protection
afforded to plaintiff, both in terms of the [safety devices] provided
to him and the absence of other safety devices . . . [, and] whether
the conduct of plaintiff was the sole proximate cause of his injuries”
(Brown v Concord Nurseries, Inc., 37 AD3d 1076, 1077; see Trippi v
Main-Huron, LLC, 28 AD3d 1069, 1070; see also Donovan v CNY Consol.
Contrs., 278 AD2d 881, 881).




Entered:   December 28, 2012                   Frances E. Cafarell
                                               Clerk of the Court
