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 elevationrelated 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