SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1121 

CA 11-00585 

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND LINDLEY, JJ. 

 

JOSHUA BROWNELL, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

BLUE SEAL FEEDS, INC., DOING BUSINESS AS 

BLUE SEAL FEEDS MILLS AND BLUE SEAL FEEDS RETAIL 

STORE, JOSEPH J. BENNETT, DEBRA KAY BENNETT 

AND HERTEL STEEL, INC., DEFENDANTS-RESPONDENTS. 

 

THE ROTHSCHILD LAW FIRM, P.C., EAST SYRACUSE (MARTIN J. ROTHSCHILD OF

COUNSEL), FOR PLAINTIFF-APPELLANT.

COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (DONALD S. DIBENEDETTO OF

COUNSEL), FOR DEFENDANT-RESPONDENT HERTEL STEEL, INC. 

SUGARMAN LAW FIRM, LLP, SYRACUSE (TIMOTHY J. PERRY OF COUNSEL), FOR

DEFENDANTS-RESPONDENTS JOSEPH J. BENNETT AND DEBRA KAY BENNETT. 

 

Appeal from an order of the Supreme Court, Jefferson County (Hugh

A. Gilbert, J.), entered November 24, 2010 in a personal injury

action. The order granted defendants’ motions for summary judgment

dismissing the second amended complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by denying that part of the motion of

defendant Hertel Steel, Inc. for summary judgment dismissing the

common-law negligence claim against it in the first cause of action

and the fourth cause of action and reinstating that claim against

defendant Hertel Steel, Inc. and that cause of action and as modified

the order is affirmed without costs. 

Memorandum: Plaintiff commenced this Labor Law and common-law

negligence action seeking damages for injuries he sustained while

working at premises owned by defendants Joseph J. Bennett and Debra

Kay Bennett (Bennett defendants) and leased to defendants Blue Seal

Feeds, Inc., doing business as Blue Seal Feeds Mills and Blue Seal

Feeds Retail Store. The Bennett defendants contracted with

plaintiff’s employer to construct an addition on the premises, and

plaintiff’s employer contracted with defendant Hertel Steel, Inc.

(Hertel Steel) to supply steel rebar for the project. On the date of

the accident, Hertel Steel delivered steel rebar to the premises on a

flatbed truck. According to plaintiff, he climbed onto a four-foot

pile of rebar stacked on the truck in order to ascertain the best

method for unloading the rebar. As plaintiff was in the process of
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CA 11-00585 

swinging his right leg over the top of the pile, the pile “shifted” or

“snapped,” striking his left foot. The momentum of the shifting rebar

“threw [plaintiff] off the truck” and onto the ground. The Bennett

defendants moved for summary judgment dismissing the second amended

complaint against them, and Hertel Steel moved for summary judgment

dismissing the second amended complaint and all cross claims against

it. Plaintiff contends on appeal that Supreme Court erred in granting

the motion of the Bennett defendants as well as that part of the

motion of Hertel Steel with respect to the second amended complaint.

Addressing first the motion of the Bennett defendants, we

conclude that the court properly granted that part of their motion for

summary judgment dismissing the Labor Law § 240 (1) cause of action

against them inasmuch as “[p]laintiff’s fall . . . was not an

elevation-related risk that calls for any of the protective devices of

the types listed in Labor Law § 240 (1)” (Lessard v Niagara Mohawk

Power Corp., 277 AD2d 941, 941; see generally Narducci v Manhasset Bay

Assoc., 96 NY2d 259, 267). It is well established that “the surface

of a flatbed truck does not constitute an elevated work surface for

purposes of Labor Law § 240 (1)” (Plump v Wyoming County, 298 AD2d

886, 886; see Toefer v Long Is. R.R., 4 NY3d 399, 405; Lavore v Kir

Munsey Park 020, LLC, 40 AD3d 711, 712-713, lv denied 10 NY3d 701). 

Contrary to plaintiff’s contention, the fact that he allegedly fell

while he was “standing on [a pile of rebar] rather than standing on

the bed of the truck does not move this case from one involving the

ordinary dangers of a construction site to one involving the special

risks protected by Labor Law § 240 (1)” (Berg v Albany Ladder Co., 40

AD3d 1282, 1284-1285, affd 10 NY3d 902). Likewise without merit is

plaintiff’s alternative contention that section 240 (1) applies

because the accident was caused by the force of gravity acting upon a

falling object, i.e., the rebar pile. Plaintiff was not struck by a

falling object; rather, plaintiff’s own deposition testimony

establishes that the bundle or piece of rebar that struck his leg

swung outward in a horizontal direction (see Toefer, 4 NY3d at 408;

see also Medina v City of New York, 87 AD3d 907). In any event, the

rebar bundle did not fall “while being hoisted or secured,” and thus

Labor Law § 240 (1) does not apply for that reason as well (Narducci,

96 NY2d at 268; cf. Mentesana v Bernard Janowitz Constr. Corp., 44

AD3d 721, 721-722). 

We further conclude that the court properly granted that part of

the motion of the Bennett defendants with respect to the Labor Law §

241 (6) cause of action against them inasmuch as the specific

Industrial Code section upon which plaintiff relies on appeal does not

apply to the facts of this case. 12 NYCRR 23-1.7 (f), entitled

“[v]ertical passage,” provides that “[s]tairways, ramps or runways

shall be provided as the means of access to working levels above or

below ground except where the nature or the progress of the work

prevents their installation in which case ladders or other safe means

of access shall be provided.” The stack of rebar is not a “working

level above ground requiring a stairway, ramp, or runway under that

section” (Lavore, 40 AD3d at 713; see Amantia v Barden & Robeson

Corp., 38 AD3d 1167, 1169; Farrell v Blue Circle Cement, Inc., 13 AD3d
-3- 1121 

CA 11-00585 

1178, 1179-1180, lv denied 4 NY3d 708). Plaintiff on appeal has

abandoned any contention with respect to the remaining alleged

violations of the Industrial Code sections set forth in his second

amended complaint and plaintiff’s bill of particulars in response to

the Bennett defendants’ demand therefor, and we therefore do not

address them (see McCormick v 257 W. Genesee, LLC, 78 AD3d 1581, 1583;

Ciesinski v Town of Aurora, 202 AD2d 984). Plaintiff also has

abandoned any contentions with respect to the first cause of action

against the Bennett defendants, for common-law negligence and the

violation of Labor Law § 200.

With respect to the motion of Hertel Steel, we further conclude

that the court properly granted those parts of its motion with respect

to the Labor Law causes of action against it. By the express terms of

Labor Law § 240 (1) and § 241 (6), the nondelegable duties imposed by

those statutes apply only to “contractors and owners and their

agents.” Similarly, Labor Law § 200 is a codification of “landowners’

and general contractors’ common-law duty to maintain a safe workplace”

(Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505). Here, “[i]n

the absence of any evidence that [Hertel], which was responsible for

[fabricat]ing and delivering [rebar] to the construction site,

exercised any authority or control over the work site or the work

giving rise to the plaintiff’s injuries, the . . . [c]ourt properly

concluded that [Hertel] was not a statutory agent of either an owner

or general contractor” (Brooks v Harris Structural Steel, 242 AD2d

653).

We agree with plaintiff, however, that the court erred in

granting that part of Hertel Steel’s motion for summary judgment

dismissing the common-law negligence claim in the first cause of

action against Hertel Steel, as well as the fourth cause of action,

for common-law negligence, which was asserted solely against it. We

therefore modify the order accordingly. Hertel Steel’s own

submissions in support of its motion raise issues of fact whether its

employees were negligent in the bundling, loading or securing of the

rebar, and whether such negligence was a proximate cause of

plaintiff’s injuries (see Farrington v Bovis Lend Lease LMB, Inc., 51

AD3d 624, 626; Kelarakos v Massapequa Water Dist., 38 AD3d 717, 719). 

Entered: November 10, 2011 Patricia L. Morgan

Clerk of the Court