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

147
CA 14-01161
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND VALENTINO, JJ.


ANDRE BANKS, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

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.


     Appeal from an order of the Supreme Court, Erie County (John A.
Michalek, J.), entered February 24, 2014. The order, insofar as
appealed from, denied the motion of plaintiff for partial summary
judgment and granted in part the cross motion of defendants 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 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 AD3d 1064, 1065; see
generally Cioffi v Target Corp., 114 AD3d 897, 898-899). 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
AD3d at 1065; see generally Gallagher v New York Post, 14 NY3d 83,
88).

     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
                                 -2-                           147
                                                         CA 14-01161

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 NY3d 399, 409-410; Georgakopoulos v
Shifrin, 83 AD3d 659, 660). 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 AD3d 1563, 1564; Harmon v Hotel
Syracuse, Inc., 26 AD3d 750, 751; see generally CPLR 5515 [1]).




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
