DelliCarpini Law Firm, Garden City (Christopher J.
DelliCarpini of counsel), for appellant.
Maroney O'Connor LLP, New York (Ross T. Herman of
counsel), for NYU Langone Medical Center and Hospital for
Joint Diseases, respondents.
Marshall Dennehey Warner Coleman & Goggin, Melville (Mark
J. Agin of counsel), for Cardella Trucking Company, Inc.,
Mazzarelli, J.P., Saxe, Moskowitz, Kahn, Gesmer, JJ.
Supreme Court, New York County (Eileen A. Rakower, J.),
entered December 14, 2015, which, to the extent appealed from
as limited by the briefs, granted defendant Cardella Trucking
Company, Inc.'s motion, and defendants NYU Langone
Medical Center and Hospital for Joint Diseases' (together
the NYU Hospital defendants) motion, for summary judgment
dismissing plaintiff's Labor Law § 241(6) claim
predicated upon an alleged violation of Industrial Code (12
NYCRR) § 23-1.28(b), and denied plaintiff's cross
motion for partial summary judgment on the same claim,
unanimously modified, on the law, to deny the NYU Hospital
defendants' motion for summary judgment dismissing the
Labor Law § 241(6) claim as against them, and otherwise
affirmed, without costs.
working as a laborer on a construction site at defendant
Hospital for Joint Diseases, plaintiff allegedly sustained
injuries when the wheel of a mini-container rolled over his
foot. Defendant Cardella had provided the mini-containers
that the laborers used to remove debris from the work site.
Plaintiff and the other laborers would move these
mini-containers across the floor to a hoist that would lower
them to the street level, where a Cardella employee would
empty the contents into a Cardella truck, and then return the
mini-container to the laborers. Cardella employees were not
at the work site daily; they came to the work site only when
the contractors called them to empty the containers.
deposition, plaintiff testified that just before his alleged
accident, he and another laborer were demolishing a cement
wall in preparation for a renovation of the hospital's
seventh floor. In the course of that work, plaintiff was
trying to wheel a mini-container containing 500 to 800 pounds
of construction debris to a hoist on the outside of the
building so that workers could empty the contents. While
pulling the mini-container, plaintiff noticed that it was
moving only "intermittently, " and that it would
"start and stop." When plaintiff eventually pulled
hard on the container in an effort to move it, one of the
wheels of the mini-container ran over his foot and came to
rest there, injuring him. Within approximately 30 minutes of
the alleged accident, plaintiff informed his foreman that the
wheel on the mini-container had been "messed up."
commenced this action asserting causes of action under, among
other things, Labor Law § 241(6). The Labor Law claim
was predicated on Industrial Code (12 NYCRR) §
23-1.28(b), pertaining to hand-propelled vehicles
. With respect to those claims,
plaintiff alleged in the complaint that the mini-container
that had rolled over his foot did not have
"free-running" wheels as required by the Industrial
motion court properly dismissed the complaint as against
Cardella. Cardella established that it was not an agent of
the owner under Labor Law § 241(6), since it did not
have the authority to direct, supervise, or control the
injury-producing work (see Lopez v Dagan, 98 A.D.3d
436, 437 [1st Dept 2012], lv denied 21 N.Y.3d 855');">21 N.Y.3d 855
). Rather, Cardella was merely the supplier of the
allegedly defective mini-container, against whom liability
under the Labor Law cannot be imposed (see Noah v 270
Lafayette Assoc., 233 A.D.2d 108, 109 [1st Dept 1996]).
the Labor Law § 241(6) claim against the NYU Hospital
defendants should have gone forward. Plaintiff testified that
immediately before the alleged accident, he struggled to move
the mini-container after the wheel apparently became stuck,
and that as a result, he was injured when the mini-container
rolled onto his foot when he forcefully pulled it in an
attempt to move it. This uncontradicted testimony presents a
question of fact on whether the wheels on the mini-container
were "free-running" as required by 12 NYCRR
23-1.28(b) (see Freitas v New York City Tr. Auth.,
249 A.D.2d 184, 185-186 [1st Dept 1998]), and the NYU
Hospital defendants failed to carry their burden as the
movant to show that the wheel on the mini-container was not
defective (see Picchione v Sweet Constr. Corp., 60
A.D.3d 510, 512 [1st Dept 2009]). Likewise, the motion court
properly denied plaintiff's cross motion for partial
summary judgment on his § 241(6) claim.
considered plaintiff's remaining contentions and find
 Plaintiff originally commenced this action
against three NYU defendants: New York University, NYU
Langone Medical Center, and Hospital for Joint Diseases.
After NYU Langone Medical Center and the Hospital for Joint
Diseases admitted that they owned the property on the date of
plaintiff's alleged accident, the parties agreed by