POWELL v. SODUS COLD STORAGE COMPANY (1999)

 Supreme Court erred in granting that part of defendant's cross motion for summary judgment dismissing the Labor Law § 240(1) cause of action.   There is a question of fact whether the insulation panel was hoisted above the ground and came loose from the rope, striking plaintiff (see, e.g., Panattoni v. Inducon Park Assocs., 247 A.D.2d 823, 668 N.Y.S.2d 840), or whether plaintiff was holding the panel at chest level when the rope loosened and the weight of the panel shifted, forcing plaintiff to the ground (see, e.g., Corbett v. Hogan, 248 A.D.2d 983, 670 N.Y.S.2d 273).

 The court, however, properly granted that part of defendant's cross motion for summary judgment dismissing the Labor Law § 241(6) cause of action.   In his brief, plaintiff alleges that defendant violated various sections of the Industrial Code. There are no references to those sections in the record, however, and plaintiff may not rely on those sections for the first time on appeal (see, McMahon v. Durst, 224 A.D.2d 324, 638 N.Y.S.2d 48).   Finally, it is undisputed that defendant did not direct or control plaintiff's work;  thus, the court also properly granted that part of defendant's cross motion for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action (see, Comes v. New York State Elec. & Gas Co., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168, 631 N.E.2d 110;  Malecki v. Wal-Mart Stores, 222 A.D.2d 1010, 635 N.Y.S.2d 888).

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: