dissent in a memorandum by Saxe, J., as follows: I would affirm the order denying defendants-appellants’ motion for a framed issue hearing to determine, for purposes of plaintiff-respondent’s Labor Law § 241 (6) claim, whether a certain piece of equipment is a mobile crane within the ambit of the Industrial Code.
In the order challenged on the prior appeal, Supreme Court dismissed plaintiffs’ common-law negligence claims and Labor Law §§ 200 and 240 (1) claims, as well as the Labor Law § 241 (6) cause of action with respect to certain claims; it permitted plaintiffs to amend their bill of particulars to include violations of Industrial Code (12 NYCRR) § 23-8.2 (d) (1) and (2) and, as to those sections, held that the question of whether the Gradall 534B rough terrain forklift was a mobile crane presented an issue of fact. On appeal, plaintiffs challenged particular aspects of Supreme Court’s order denying in part and granting in part defendants’ motion for summary judgment and plaintiffs’ motion to amend their bill of particulars; defendants withdrew their appeal. We modified so as to permit amendment of the bill of particulars to include asserted violations of three other Industrial Code provisions as well, and otherwise affirmed.
On the eve of trial, defendants moved for a stay of trial and a framed issue hearing to determine, as a matter of law, the issue Supreme Court had already held to be a question of fact, namely whether the Gradall was a mobile crane as contemplated in the Industrial Code. This point could have been raised by defendants in the appeal they instead decided to withdraw.
While the prior appeal was limited, and we were not required to review the holding as to the characterization of the Gradall, defendant made a strategic decision to leave unchallenged the determination that an issue of fact was presented as to whether the Gradall is a mobile crane. Having declined to appeal from that aspect of the decision, they should not be permitted to *460make an end run around the decision, thereby successfully sidetracking the trial on the very day on which jury selection was scheduled to begin. The matter should now proceed to trial on the question of whether defendant was negligent under any of the theories plaintiff proffered, including the Industrial Code provision applicable to mobile cranes.
Accordingly, I respectfully dissent.