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

262
CA 13-01366
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


BRIAN HYATT, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

DANIEL YOUNG, DOING BUSINESS AS CY
CONSTRUCTION, DEFENDANT-RESPONDENT.


FARACI LANGE, LLP, ROCHESTER (JOSEPH A. REGAN OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

LACY KATZEN LLP, ROCHESTER (JOHN M. WELLS OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Monroe County (Thomas A. Stander, J.), entered November 19,
2012. The order and judgment, insofar as appealed from, denied that
part of the motion of plaintiff seeking partial summary judgment on
liability on his Labor Law § 240 (1) claim and granted that part of
the cross motion of defendant seeking summary judgment dismissing that
claim.

     It is hereby ORDERED that the order and judgment insofar as
appealed from is unanimously reversed on the law without costs, that
part of the cross motion for summary judgment dismissing the Labor Law
§ 240 (1) claim is denied, that claim is reinstated, and that part of
the motion seeking partial summary judgment on liability on that claim
is granted.

     Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action seeking damages for injuries he sustained while
delivering materials for a roofing project. Plaintiff was unloading
roofing supplies using a conveyor on a flatbed truck, and the accident
occurred when plaintiff attempted to raise a four-foot by eight-foot
plywood sheet onto the roof. The plywood became unbalanced on the
conveyor and, as plaintiff attempted to steady it, he fell from the
bed of the flatbed truck to the ground five feet below and sustained
injuries. Supreme Court denied plaintiff’s motion for partial summary
judgment on the issue of liability on all of plaintiff’s claims and
granted defendant’s cross motion for summary judgment dismissing the
complaint. We note at the outset that, as limited by his brief,
plaintiff appeals from the order and judgment insofar as it granted
defendant’s cross motion and denied that part of his motion seeking
partial summary judgment on the issue of liability pursuant to Labor
Law § 240 (1). We agree with plaintiff.
                                 -2-                           262
                                                         CA 13-01366

     Although flatbed trucks “d[o] not present the kind of elevation-
related risk that the statute contemplates” (Toefer v Long Is. R.R., 4
NY3d 399, 408), the accident in this case was caused by a falling
object, which distinguishes this case from Toefer (cf. Brownell v Blue
Seal Feeds, Inc., 89 AD3d 1425, 1426-1427). The accident that caused
plaintiff’s injuries “flow[ed] directly from the application of the
force of gravity to the object” (Runner v New York State Stock Exch.,
Inc., 13 NY3d 599, 604; see Ross v Curtis-Palmer Hydro-Elec. Co., 81
NY2d 494, 501). In other words, the injuries were the result of “the
direct consequence of a failure to provide statutorily required
protection against a risk plainly arising from a workplace elevation
differential” (Runner, 13 NY3d at 605). Inasmuch as plaintiff
established that the plywood fell while being hoisted because of the
absence or inadequacy of a safety device of the kind enumerated in the
statute, we conclude that he is entitled to summary judgment on the
section 240 (1) claim (see generally Narducci v Manhasset Bay Assoc.,
96 NY2d 259, 268).

     As an alternative ground for affirmance (see generally Parochial
Bus. Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 546),
defendant contends that he cannot be held liable because he did not
direct or control the method of unloading the roofing materials. We
reject that contention. Defendant was the roofing contractor at the
job site and purchased supplies from plaintiff’s employer. It is well
settled that a contractor’s duties under Labor Law § 240 (1) are
nondelegable, and a contractor may be held liable regardless of
whether he actually exercised supervision or control over the work
(see Ross, 81 NY2d at 500). As a further alternative ground for
affirmance, defendant contends that plaintiff was not engaged in a
protected activity under Labor Law § 240 (1) at the time of the
accident. We reject that contention inasmuch as plaintiff’s work in
unloading the roofing material is a protected activity under the
statute (see Orr v Christa Constr., 206 AD2d 881, 881).




Entered:   May 2, 2014                         Frances E. Cafarell
                                               Clerk of the Court
