CHIARELLO v. [And Other Actions]. (2002)

Order, Supreme Court, Bronx County (Stanley Green, J.), entered October 25, 2000, which, insofar as appealed from, denied plaintiff's motion for summary judgment on his cause of action under Labor Law § 240(1) and granted defendants' cross motions for summary judgment dismissing that cause of action, unanimously affirmed, without costs.

Plaintiff, a truck driver in the employ of a supplier of electrical materials, was injured while delivering a heavy copper reel to the subcontractor hired to do the electrical work on a construction project.   According to plaintiff, he rolled the reel to the truck's elevated tailgate, whereupon the tailgate collapsed, sending him four feet to the ground.   The IAS court correctly held that, as a matter of law, plaintiff was neither among the class of workers (see Gentile v. New York City Hous. Auth., 228 A.D.2d 296, 643 N.Y.S.2d 588, lv. dismissed 89 N.Y.2d 981, 656 N.Y.S.2d 739, 678 N.E.2d 1355;  Agli v. Turner Constr. Co., 246 A.D.2d 16, 21-23, 676 N.Y.S.2d 54) nor performing the type of work (see Dilluvio v. City of New York, 264 A.D.2d 115, 117-118, 704 N.Y.S.2d 550, affd. 95 N.Y.2d 928, 721 N.Y.S.2d 603, 744 N.E.2d 138, citing, inter alia, DePuy v. Sibley, Lindsay & Curr Co., 225 A.D.2d 1069, 639 N.Y.S.2d 207;  see also Samuel v. A.T.P. Dev. Corp., 276 A.D.2d 685, 686, 714 N.Y.S.2d 729, lv. denied 96 N.Y.2d 708, 725 N.Y.S.2d 638, 749 N.E.2d 207) that Labor Law § 240(1) is intended to protect.