Opinion
May 4, 2000.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about March 23, 1999, which granted the cross motion of plaintiff for summary judgment as to liability upon his Labor Law 240 Lab.(1) claim as against defendant 79th Realty Corporation and denied the motion of defendant Glenwood Management Corporation and the cross motion of defendant 79th Realty for summary judgment dismissing plaintiff's Labor Law § 240 Lab.(1) claim, unanimously affirmed, without costs.
Lonny Levitz, for Plaintiffs-Respondents.
William Thymius, for Defendant-Appellant.
SULLIVAN, P.J., ELLERIN, LERNER, BUCKLEY, JJ.
Plaintiff, a carpenter, sustained injuries when he fell from 3-to-5-foot stilts while finishing a ceiling. Since the accident was plainly attributable to the failure to afford plaintiff proper safety equipment, i.e., a ladder or scaffold, for the performance of the ceiling work, the motion court correctly held that plaintiff was entitled to summary judgment as to liability upon his Labor Law 240 Lab.(1) claim (see, Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 512-5 13). Defendants' contention that this case falls within the court of Appeals holding in Melber v. 6333 Main St., Inc. ( 91 N.Y.2d 759) is misplaced. Here, in distinction to Melber, where the plaintiff was injured in a fall from stilts as he walked down a hallway to retrieve a tool, plaintiff was injured in the course of actually performing construction at an elevation. Indeed, theMelber court noted that "[h]ad [the stilts] failed while plaintiff was installing the metal studs in the top of the drywall — work requiring the statute's special protections — a different case would be presented" (at 763-764; see also, Klein v. City of New York, 89 N.Y.2d 833).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.