Opinion
March 12, 1993
Appeal from the Supreme Court, Niagara County, Rath, Jr., J.
Present — Green, J.P., Pine, Lawton, Fallon and Davis, JJ.
Order and judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff was injured while working on the roof of a water holding tank approximately 35 feet above the ground. The roof was flat for the first three feet from the edge and then sloped upward about 10 more feet. A railing around the edge of the tank had been removed a few weeks before and no other safety devices were present. Plaintiff tripped on a discarded piece of scaffolding and fell onto the flat part of the roof, landing on the pipe scaffolding he was carrying. He stated that he was faced with falling on the scaffolding or falling to the ground. The court erred in granting defendant Town of Lewiston's cross motion for summary judgment dismissing plaintiff's complaint. We reject defendant's argument that Labor Law § 240 (1) could not apply because plaintiff fell at, rather than from, a height (see, Brown v. Niagara Mohawk Power Corp., 188 A.D.2d 1014; Aruck v. Xerox Corp., 144 Misc.2d 367, 372, affd 166 A.D.2d 907; see also, Pietsch v. Moog, Inc., 156 A.D.2d 1019). We conclude, however, that plaintiff was not entitled to partial summary judgment on his Labor Law § 240 (1) cause of action against the Town because his conclusory account of the accident fails to establish liability as a matter of law.