PLUMP v. WYOMING COUNTY (2002)

 At the outset we note that plaintiff appealed from the order granting summary judgment dismissing the complaint rather than from the subsequent judgment in which the order was subsumed.   In our discretion, we treat the notice of appeal as taken from the subsequent judgment (see CPLR 5520 [c];  Hughes v. Nussbaumer, Clarke & Velzy, 140 A.D.2d 988, 529 N.Y.S.2d 658).   Plaintiff was injured when he fell 4 1/212 feet from the flatbed of a delivery truck at a construction site.   He commenced this action against the owners of the construction site alleging, inter alia, the violation of Labor Law § 240(1) and § 241(6).   Supreme Court properly granted that part of defendants' motion seeking summary judgment dismissing the Labor Law § 240(1) claim and properly denied plaintiff's cross motion seeking partial summary judgment on liability on that claim.   As this Court has previously determined, the surface of a flatbed truck does not constitute an elevated work surface for purposes of Labor Law § 240(1) (see Tillman v. Triou's Custom Homes, 253 A.D.2d 254, 257, 687 N.Y.S.2d 506).   Plaintiff's injury arose out of the “usual and ordinary dangers at a construction site,” not an elevation-related risk (Nieves v. Five Boro A.C. & Refrig. Corp., 93 N.Y.2d 914, 916, 690 N.Y.S.2d 852, 712 N.E.2d 1219;  see Rodriguez v. Tietz Ctr. for Nursing Care, 84 N.Y.2d 841, 843, 616 N.Y.S.2d 900, 640 N.E.2d 1134;  Mattingly v. AES Corp., 291 A.D.2d 862, 737 N.Y.S.2d 497, appeal dismissed 98 N.Y.2d 647, 745 N.Y.S.2d 504, 772 N.E.2d 607).

 Also contrary to plaintiff's contention, the court properly granted that part of defendants' motion seeking summary judgment dismissing the Labor Law § 241(6) claim.   The regulations relied on by plaintiff, 12 NYCRR 23-1.7(b)(1)(i), 23-1.15, 23-1.16, and 23-1.17, have no application to the facts of this case (see Frank v. Meadowlakes Dev. Corp., 256 A.D.2d 1141, 1142, 686 N.Y.S.2d 540;  Bennion v. Goodyear Tire & Rubber Co., 229 A.D.2d 1003, 645 N.Y.S.2d 195;  see also Panek v. County of Albany, 286 A.D.2d 86, 90, 731 N.Y.S.2d 803;  Luckern v. Lyonsdale Energy Ltd. Partnership, 281 A.D.2d 884, 886-887, 722 N.Y.S.2d 632).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: