BROWN v. CIMINELLI COWPER INC

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Supreme Court, Appellate Division, Fourth Department, New York.

Kihm E. BROWN, Plaintiff-Respondent, v. CIMINELLI-COWPER, INC., Defendant-Appellant.

Decided: December 31, 2003

PRESENT:  PIGOTT, JR., P.J., PINE, WISNER, HURLBUTT, AND GORSKI, JJ. Hiscock & Barclay, LLP, Rochester (Robert M. Shaddock of Counsel), for Defendant-Appellant. Lewis & Lewis, P.C., Buffalo (Allan M. Lewis of Counsel), for Plaintiff-Respondent.

 Supreme Court properly denied that part of defendant's motion seeking summary judgment dismissing the Labor Law § 241(6) cause of action.   Defendant failed to establish as a matter of law that plaintiff's fall from a scissor lift does not give rise to liability under that section.   This Court has previously determined that a scissor lift is “a device that is ‘functionally similar’ to a scaffold” (Primavera v. Benderson Family 1968 Trust, 294 A.D.2d 923, 924, 741 N.Y.S.2d 816), and thus we conclude that the scissor lift is within the purview of 12 NYCRR 23-1.7(d).  We further conclude that, although defendant established that it did not supervise or control the work performed by contractors at the work site, plaintiff raised an issue of fact whether defendant's practice of directing contractors to correct safety concerns at the work site rendered defendant an agent of the owner within the meaning of Labor Law § 241(6) (see generally Ortega v. Catamount Constr. Corp., 264 A.D.2d 323, 323-324, 694 N.Y.S.2d 367, lv. denied 94 N.Y.2d 755, 701 N.Y.S.2d 711, 723 N.E.2d 566).

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

MEMORANDUM: