GOWANS v. OTIS MARSHALL FARMS INC

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

John T. GOWANS and Sherry Batchelder, Plaintiffs–Appellants, v. OTIS MARSHALL FARMS, INC., doing business as Marshall Farms, Defendant–Respondent.

Otis Marshall Farms, Inc., doing business as Marshall Farms, Third–Party Plaintiff–Appellant, v. Gowans Home Improvement and Harold Gowans, Third Party Defendants–Respondents.

Decided: June 17, 2011

PRESENT:  SMITH, J.P., CENTRA, FAHEY, GORSKI, AND MARTOCHE, JJ. Law Offices of Marc Jonas, Utica (Richard A. Cohen of Counsel), for Plaintiffs–Appellants. Cramer, Smith & Miller, P.C., Syracuse (Lauren M. Miller of Counsel), for Defendant–Respondent and Third–Party Plaintiff–Appellant. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Gabrielle Mardany Hope of Counsel), for Third–Party Defendants–Respondents.

Plaintiffs commenced this action seeking damages for injuries sustained by John T. Gowans (plaintiff) when he allegedly fell through a hay hole in a barn owned by defendant-third-party plaintiff, Otis Marshall Farms, Inc., doing business as Marshall Farms (Otis).   We agree with plaintiffs that Supreme Court erred in granting those parts of the cross motion of Otis for summary judgment dismissing the Labor Law § 240(1) and § 241(6) claims, and we therefore modify the order and judgment accordingly.   We note at the outset that the court also granted that part of the cross motion of Otis for summary judgment dismissing the Labor Law § 200 claim, but plaintiffs failed to address that issue in their brief on appeal and thus are deemed to have abandoned any contention with respect thereto (see Olson v. Pyramid Crossgates Co., 291 A.D.2d 706, 708, 738 N.Y.S.2d 430;  Ciesinski v. Town of Aurora, 202 A.D.2d 984, 609 N.Y.S.2d 745).

The record establishes that, at the time of plaintiff's accident, his brother was taking measurements on the upper level of a barn owned by Otis, and that such measurements were “necessary and incidental” to the replacement of rotting carrier beams (Bagshaw v. Network Serv. Mgt., 4 A.D.3d 831, 832, 772 N.Y.S.2d 161;  see Mannes v. Kamber Mgt., 284 A.D.2d 310, 726 N.Y.S.2d 440, lv. dismissed 97 N.Y.2d 638, 735 N.Y.S.2d 494, 760 N.E.2d 1290).   It is undisputed that plaintiff and his brother were partners of third-party defendant Gowans Home Improvement, the construction company hired to perform the replacement job (cf. Gibson v. Worthington Div. of McGraw–Edison Co., 78 N.Y.2d 1108, 1109, 578 N.Y.S.2d 127, 585 N.E.2d 376;  Fabrizio v. City of New York, 306 A.D.2d 87, 87–88, 762 N.Y.S.2d 41).   Plaintiff's brother had been instructed to cover the hay hole through which plaintiff allegedly fell while ascending to the upper level of the barn in order to speak to his brother.

 We agree with plaintiffs that the court erred in determining that plaintiff was not entitled to the protection of the Labor Law at the time of the accident, inasmuch as “[i]t is not necessary that an employee be actually working on his [or her] assigned duties at the time of the injury” (Reeves v. Red Wing Co., 139 A.D.2d 935, 936, 527 N.Y.S.2d 916;  see Boncore v. Temple Beth Zion, 299 A.D.2d 953, 954, 751 N.Y.S.2d 337).   Indeed, “the relevant inquiry here is not whether the plaintiff picked up a tool to effect a repair, but whether he had been hired to take any part in the repair work” (Campisi v. Epos Contr. Corp., 299 A.D.2d 4, 8, 747 N.Y.S.2d 218).  “It is no defense to [the plaintiff's] recovery under [the] Labor Law ․ that it was not necessary for the plaintiff to be [at the location where his brother was taking the measurements] at the time of the accident in order to speak to his [brother],” who was his coworker (Birbilis v. Rapp, 205 A.D.2d 569, 570, 613 N.Y.S.2d 414;  see Hagins v. State of New York, 81 N.Y.2d 921, 923, 597 N.Y.S.2d 651, 613 N.E.2d 557), and thus plaintiff was entitled to the protections afforded by Labor Law § 240(1) and § 241(6).

 We reject plaintiffs' further contention, however, that the court erred in denying their motion for partial summary judgment on the Labor Law § 240(1) and § 241(6) claims.   Plaintiff has no recollection of the accident, and there were no witnesses who observed it.   In any event, there is a triable issue of fact with respect to the cause of plaintiff's injuries because the record contains conflicting expert affidavits on that issue, rendering summary judgment inappropriate (see generally Selmensberger v. Kaleida Health, 45 A.D.3d 1435, 1436, 845 N.Y.S.2d 659).   Otis submitted the affidavit of a biomedical engineer who opined that plaintiff's injuries were not consistent with the six-foot fall through an unguarded hay hole alleged by plaintiff to have occurred, while plaintiffs submitted the affidavit of plaintiff's treating neurosurgeon, who opined that plaintiff sustained a severe head injury as a result of falling from a height of approximately six feet or more (see generally § 240(1);  § 241(6);  12 NYCRR 23–1.7 [b] [1][i] ).

 Finally, we agree with Otis that the court erred in granting the cross motion of third-party defendants for summary judgment dismissing the third-party complaint.   The record establishes that there are triable issues of fact whether plaintiff's brother, and therefore third-party defendants, were negligent in either failing to cover the hay hole or in failing to turn on available lights (see generally Torrillo v. Kiperman, 183 A.D.2d 821, 821–822, 584 N.Y.S.2d 112).   We therefore further modify the order and judgment accordingly.

It is hereby ORDERED that the order and judgment so appealed from is unanimously modified on the law by denying those parts of the cross motion of defendant-third-party plaintiff for summary judgment dismissing the Labor Law § 240(1) and § 241(6) claims and reinstating those claims and by denying the cross motion of third-party defendants for summary judgment dismissing the third-party complaint and reinstating the third-party complaint and as modified the order and judgment is affirmed without costs.

MEMORANDUM: