Opinion
02-03-2017
Stephen M. JONES, Plaintiff–Appellant, v. NAZARETH COLLEGE OF ROCHESTER, LECHASE CONSTRUCTION SERVICES, LLC, and Billitier Electric, Inc., Defendants–Respondents. Nazareth College of Rochester and Lechase Construction Services, LLC, Third–Party, Plaintiffs–Respondents, v. Crosby–Brownlie, Inc., Third–Party, Defendant–Respondent.
Smith, Miner, O'Shea & Smith, LLP, Buffalo (Carrie L. Smith of Counsel), for Plaintiff–Appellant. The Tarantino Law Firm, LLP, Buffalo (Tamsin J. Hager of Counsel), for Defendants–Respondents and Third–Party Plaintiffs–Respondents. Hurwitz & Fine, P.C., Buffalo (David R. Adams of Counsel), for Third–Party Defendant–Respondent.
Smith, Miner, O'Shea & Smith, LLP, Buffalo (Carrie L. Smith of Counsel), for Plaintiff–Appellant.
The Tarantino Law Firm, LLP, Buffalo (Tamsin J. Hager of Counsel), for Defendants–Respondents and Third–Party Plaintiffs–Respondents.
Hurwitz & Fine, P.C., Buffalo (David R. Adams of Counsel), for Third–Party Defendant–Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, DeJOSEPH, AND NEMOYER, JJ.
MEMORANDUM:
Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained when he fell from an A–frame ladder. We conclude that Supreme Court properly denied plaintiff's motion for partial summary judgment on the issue of liability with respect to the Labor Law § 240(1) cause of action. At the time of the accident, plaintiff was using a 10–foot A–frame ladder to install flashing around a duct. The ladder was folded shut and leaning against the wall while plaintiff was using it. Just before the accident, he was using both hands to take a measurement above his head, while standing on "the fourth or fifth rung" of the ladder, which was "at least four feet off the floor." As he extended his tape measure, he felt a strong electric shock to his left arm and he fell off the ladder.
Contrary to plaintiff's contention, we conclude that the court properly denied the motion. "[T]here are questions of fact ... whether ... the ladder, which was not shown to be defective in any way, failed to provide proper protection, and whether ... plaintiff should have been provided with additional safety devices" (Gange v. Tilles Inv. Co., 220 A.D.2d 556, 558, 632 N.Y.S.2d 808 ; see Nazario v. 222 Broadway, LLC, 28 N.Y.3d 1054, 1055, 43 N.Y.S.3d 251, 65 N.E.3d 1286 ; Grogan v. Norlite Corp., 282 A.D.2d 781, 782–783, 723 N.Y.S.2d 529 ; Donovan v. CNY Consol. Contrs., 278 A.D.2d 881, 881, 718 N.Y.S.2d 760 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.