May 6, 2010


Posted by: dmckenna
Plaintiff was injured when a bundle of wallboard panels that was being hoisted allegedly fell and struck him in the arm. Plaintiff alleged that the load, which had been hoisted by a fork lift truck to a point three or four feet above the third floor balcony where he was working, fell on him when the boom dropped suddenly and shook the bundle loose. Plaintiff moved for summary judgment against the owner and GC under §§240(1) and 241(6), predicated on 12 NYCRR 23-6 [materials hoisting], and against the fork lift subcontractor for negligence, relying upon res ipsa loquitur. The owner and GC cross-moved for summary judgment to dismiss plaintiff’s §241(6) claim. Order denying plaintiff’s motions, and granting the owner and GC’s cross-motion, is affirmed. Plaintiff failed to establish his entitlement to summary judgment under either §240(1) or §241(6), because the deposition testimony of the fork lift truck operator, which he submitted in support of his motion, contradicted his account that the boom dropped suddenly or that it shook from side to side. Additionally, res ipsa loquitur was insufficient to support his motion for summary judgment against the fork lift subcontractor. The Supreme Court also properly granted the owner’s and GC’s motions for summary judgment as to plaintiff’s §241(6) claim, because the provisions of 12 NYCRR 23-6 specifically exclude fork lift trucks. Ciccone v. Kendal On Hudson. Decided 4/13/10.