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

1463
CA 14-00046
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


R.L. FLOYD, CLAIMANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

NEW YORK STATE THRUWAY AUTHORITY,
DEFENDANT-APPELLANT.
(CLAIM NO. 105256.)


ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (J. MARK GRUBER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DOLCE PANEPINTO, P.C., BUFFALO (JONATHAN M. GORSKI OF COUNSEL), FOR
CLAIMANT-RESPONDENT.


     Appeal from a judgment of the Court of Claims (Jeremiah J.
Moriarty, III, J.), entered August 27, 2013. The interlocutory
judgment determined that defendant is 100% liable for claimant’s
injuries.

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

     Memorandum: Defendant appeals from an interlocutory judgment
entered in favor of claimant after a trial on the issue of liability.
Claimant, a painter working on a large-scale bridge painting project
on the north Grand Island Bridge, was struck and injured by a falling
rigging cable while preparing to return to his work area. Claimant
subsequently commenced this action seeking damages for the violation
of Labor Law § 240 (1) as well as common-law negligence, but the
latter claim was previously dismissed and is not at issue herein.

     Contrary to defendant’s contention, the Court of Claims properly
denied its motion seeking summary judgment dismissing the Labor Law §
240 (1) claim. Initially, we note that defendant may challenge the
propriety of the order denying its motion for summary judgment on this
appeal from the interlocutory judgment (see e.g. Fusco v Hobbes, 16
AD3d 1031, 1032; see generally Burke v Crosson, 85 NY2d 10, 15-16).
Likewise, although defendant previously had cross-moved for summary
judgment and “successive summary judgment motions generally are
disfavored” (Giardina v Lippes, 77 AD3d 1290, 1291, lv denied 16 NY3d
702), we are not precluded from addressing defendant’s present motion,
particularly in view of the fact that it was made after further
discovery (see id.).
                                 -2-                          1463
                                                         CA 14-00046

     We note with respect to the merits of defendant’s motion that it
is axiomatic that Labor Law § 240 (1) “applies to both ‘falling
worker’ and ‘falling object’ cases” (Narducci v Manhasset Bay Assoc.,
96 NY2d 259, 267), and that section 240 (1) guards “workers against
the ‘special hazards’ that arise when the work site either is itself
elevated or is positioned below the level where ‘materials or load
[are] hoisted or secured’ ” (Ross v Curtis-Palmer Hydro-Elec. Co., 81
NY2d 494, 501, quoting Rocovich v Consolidated Edison Co., 78 NY2d
509, 514; see Micoli v City of Lockport, 281 AD2d 881, 882). To
recover under section 240 (1), a worker injured by a falling object
must thus establish both (1) that the object was being hoisted or
secured, or that it “ ‘required securing for the purposes of the
undertaking,’ ” and (2) that the object fell because of the absence or
inadequacy of a safety device to guard against a risk involving the
application of the force of gravity over a physically significant
elevation differential (Fabrizi v 1095 Ave. of the Ams., L.L.C., 22
NY3d 658, 663, quoting Outar v City of New York, 5 NY3d 731, 732; see
Runner v New York Stock Exch., Inc., 13 NY3d 599, 603-605). Here, we
conclude that defendant failed to meet its initial burden on the
motion because the evidence it submitted in support thereof “failed to
eliminate all triable issues of fact as to whether the object that
struck [claimant] was an object that was ‘being hoisted or secured’ .
. . , or required securing for the purposes of the undertaking
pursuant to Labor Law § 240 (1)” (Ginter v Flushing Terrace, LLC, 121
AD3d 840, 843; see Gonzalez v TJM Constr. Corp., 87 AD3d 610, 611).

     We further conclude that the court properly granted claimant
judgment on liability after conducting a trial. Viewing the evidence
in the light most favorable to sustain the judgment following this
nonjury trial (see Matter of City of Syracuse Indus. Dev. Agency
[Alterm, Inc.], 20 AD3d 168, 170), we conclude that there is a fair
interpretation of the evidence supporting the court’s determination
that defendant violated Labor Law § 240 (1) (see Sung Kyu-To v
Triangle Equities, LLC, 84 AD3d 1058, 1060; Costa v Piermont Plaza
Realty, Inc., 10 AD3d 442, 444; Bornschein v Shuman, 7 AD3d 476, 478).
We have reviewed defendant’s remaining contentions and conclude that
they are without merit.




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