Opinion
April 26, 1991
Appeal from the Supreme Court, Erie County, Rath, Jr., J.
Present — Denman, J.P., Boomer, Pine, Lawton and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: Plaintiff, an employee of third-party defendant, Fleishmann Service Corp., commenced this action against defendant, which had hired Fleishmann to remove and replace a hydraulic lift in its garage, which required the removal of a concrete floor. Plaintiff, who was engaged in loading concrete and dirt from the garage and hauling it away in a truck owned by Fleishmann, fell to the floor while he was stepping down from the truck's damaged metal running board, about 1-1/2 feet from the floor. He commenced this action against defendant, asserting in his second cause of action, as amplified by his bill of particulars, that defendant violated Labor Law §§ 240 and 241 by permitting the truck's hazardous condition to exist, thereby failing to provide a safe place to work. Defendant moved for summary judgment dismissing plaintiff's complaint, which also included a negligence cause of action and a derivative cause of action by his wife, and plaintiff cross-moved for partial summary judgment on his Labor Law § 240 (1) claim. The court granted defendant's motion.
We find that the court erred in dismissing plaintiff's second cause of action insofar as it asserted a violation of Labor Law § 241 (6), and that cause of action, as well as the derivative cause of action, must be reinstated to that extent. Defendant's assertion that the truck was not part of the work site is erroneous because it is undisputed that the truck was necessary to the performance of the job (see, Kemp v. Lakelands Precast, 84 A.D.2d 630, mod on other grounds 55 N.Y.2d 1032; see, e.g., Cox v. LaBarge Bros. Co., 154 A.D.2d 947, lv dismissed 75 N.Y.2d 808; cf., Sprague v. Louis Picciano, Inc., 100 A.D.2d 247, 249-250, lv denied 62 N.Y.2d 605). This statute serves the strong public policy of encouraging owners to hire safety-conscious and financially responsible contractors (see, Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 301, rearg denied 45 N.Y.2d 776). Having established that the running board was defective, plaintiff raised an issue of fact whether defendant breached its nondelegable duty to provide adequate protection to plaintiff (see, Nagel v. Metzger, 103 A.D.2d 1; DaBolt v. Bethlehem Steel Corp., 92 A.D.2d 70, lv dismissed 60 N.Y.2d 554).
We further find, however, that the court correctly dismissed plaintiff's second cause of action insofar as it asserted a claim pursuant to Labor Law § 240 (1). Plaintiff's fall from the running board of the truck, which was 1-1/2 feet from the floor, is not the kind of fall from an elevated work site intended to be covered by that section (see generally, Staples v. Town of Amherst, 146 A.D.2d 292; see, e.g., Klien v. General Foods Corp., 148 A.D.2d 968; cf., Cartella v. Strong Museum, 135 A.D.2d 1089).