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Ortega v. Catamount Construction Corp.

Appellate Division of the Supreme Court of New York, First Department
Apr 4, 1996
226 A.D.2d 154 (N.Y. App. Div. 1996)

Opinion

April 4, 1996

Appeal from the Supreme Court, New York County (Edward Greenfield, J.).


The details of the alleged accident, as provided only by plaintiff, are vague ( see, Muhammad v. Hyman Constr., 216 A.D.2d 206). While a failure to provide overhead protection from falling debris that in turn causes a fall from a ladder may constitute a per se violation of the statute ( see, Guillory v. Nautilus Real Estate, 208 A.D.2d 336, appeal dismissed and lv denied 86 N.Y.2d 881), issues of fact remain as to the circumstances under which plaintiff was performing the asbestos removal work on a ladder, instead of from scaffolding provided by defendant Acoustic Technology Corp. Plaintiff's statement that there was no scaffolding in the area in which he was working when the accident occurred was contradicted by an Acoustic supervisor. Moreover, plaintiff did not explain why he proceeded to use a ladder when he knew that only scaffolding was being utilized by other workers. Thus, as the IAS Court noted, a question of fact exists as to whether plaintiff acted as a "`recalcitrant worker'", i.e., one who refused to use the proper equipment that was provided ( see, Stolt v. General Foods Corp., 81 N.Y.2d 918, 920), in which case strict liability would not be imposed.

Concur — Sullivan, J.P., Rosenberger, Wallach, Kupferman and Williams, JJ.


Summaries of

Ortega v. Catamount Construction Corp.

Appellate Division of the Supreme Court of New York, First Department
Apr 4, 1996
226 A.D.2d 154 (N.Y. App. Div. 1996)
Case details for

Ortega v. Catamount Construction Corp.

Case Details

Full title:PABLO ORTEGA, Appellant, v. CATAMOUNT CONSTRUCTION CORP. et al.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 4, 1996

Citations

226 A.D.2d 154 (N.Y. App. Div. 1996)
640 N.Y.S.2d 99

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