broke and caused plaintiff to fall off the truck to the ground some 13-14 feet below.
Supreme Court granted plaintiff's SJ motion, holding that he was working at an elevation and that some sort of protective device should have been utilized to prevent his fall. AD1 agrees, because defendant "failed to provide plaintiff with an adequate safety device to prevent his fall from steel beams placed on a flatbed trailer."
Are we living in some alternative universe, asks Justice Tom in dissent? One in which the Court of Appeals' decision in Berg v. Albany Ladder, 10 N.Y.3d 902 (2008) does not exist? That decision and others of the remaining ADs which followed it, found that rolling material on the back of a flatbed truck could not support a 240(1) action for there was no particular safety device which could have prevented the injury. And wait, says Justice Tom, isn't this a jury question anyway? (Remember Plaintiff's Rule #807: SJ can't be granted if there's an outstanding jury question, unless, of course, movant is a defendant.)
Nay, nay says the majority. Berg does not apply because in that case, the rolling cargo was shifted by a forklift, not the absence of a safety device. Moreover, in Toefer v. LIRR, 4 N.Y.3d 399 (2005), the flatbed truck was only 4 feet off the ground and the Court of Appeals said that such a claim "did not present the kind of elevation-related risk that the statute contemplates."
Now, that's all clear, isn't it? The rule is that if the flatbed is only 4 feet off the ground, no 240(1) and if it's 13-14 feet off the ground, 240(1) lies. What if it's be- tween 4 and 13 feet off the ground? Don't be a wiseguy.