Opinion
CA 03-00201
July 3, 2003.
Appeal from an order of Supreme Court, Onondaga County (Murphy, J.), entered May 22, 2002, which granted plaintiff's motion seeking partial summary judgment on liability on the cause of action under Labor Law 240(1) and denied defendants' cross motion for partial summary judgment dismissing that cause of action.
LAW OFFICES OF JOSEPH D. CALLERY, EAST SYRACUSE, FORD MARRIN ESPOSITO WITMEYER GLESER LLP, NEW YORK (JOSEPH D'AMBROSIO OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
SUGARMAN LAW FIRM, LLP, SYRACUSE (SHERRY R. BRUCE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum:
Supreme Court properly granted plaintiff's motion seeking partial summary judgment on liability on the cause of action under Labor Law 240(1) and denied defendants' cross motion for partial summary judgment dismissing that cause of action. Plaintiff commenced this action seeking damages for injuries he sustained when he fell from the second rung of a six-foot folding fiberglass stepladder. Plaintiff had placed the ladder, in an open and locked position, on the interior floor of the building next to a doorway where he was working. According to plaintiff's uncontradicted account of the fall, the ladder tipped or "kicked out" from under plaintiff as he started to drill the top holes for hinges to be placed in the doorway.
Here, as in Dahl v. Armor Bldg. Supply ( 280 A.D.2d 970), "[d]efendant[s'] contention that the ladder provided to plaintiff was an adequate safety device lacks merit; the fact that the ladder `tipped' establishes that it was not so `placed * * * as to give proper protection' to plaintiff" ( id. at 971; see Klein v. City of New York, 89 N.Y.2d 833, 834-835; Woodworth v. American Ref-Fuel, 295 A.D.2d 942; Evans v. Anheuser-Busch, 277 A.D.2d 874; see generally Felker v. Corning, Inc., 90 N.Y.2d 219, 224). Contrary to their further contention, defendants failed to raise a triable issue of fact whether plaintiff's conduct was the sole proximate cause of the accident ( see Panek v County of Albany, 99 N.Y.2d 452, 458; Dahl, 280 A.D.2d at 971; Adderly v. ADF Constr. Corp., 273 A.D.2d 795; cf. Weininger v. Hagedorn Co., 91 N.Y.2d 958, 960, rearg denied 92 N.Y.2d 875; Costello v. Hapco Realty, 305 A.D.2d 445 [May 12, 2003]).