| Baker v Essex Homes of W. N.Y., Inc. |
| 2008 NY Slip Op 07370 [55 AD3d 1332] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| Scott Baker, Respondent, v Essex Homes of Western New York, Inc.,Appellant. |
—[*1] Andrews, Bernstein & Maranto, LLP, Buffalo (Andrew D. Fanizzi of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered October12, 2007 in a personal injury action. The order granted the motion of plaintiff for partial summaryjudgment on liability pursuant to Labor Law § 240 (1).
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence action seekingdamages for injuries he sustained when he fell from the roof of a building owned by defendant.According to plaintiff, he was standing on bundles of shingles while he was repairing the roof, and he fellwhen the bundles, which were held in place by roofing spikes, broke apart underneath his feet.Supreme Court properly granted plaintiff's motion seeking partial summary judgment on liability on theclaim pursuant to Labor Law § 240 (1). It is undisputed that there were no safety devices inplace to protect plaintiff from falling from the roof, and plaintiff established as a matter of law that theabsence of appropriate safety devices was a proximate cause of his injuries (see Felker v CorningInc., 90 NY2d 219, 224 [1997]; Howe v Syracuse Univ., 306 AD2d 891 [2003]). Wereject defendant's contention that there is an issue of fact whether the failure of plaintiff to use safetydevices that were available elsewhere at the work site but that were not in place on the roof was thesole proximate cause of his injuries. Defendant's reliance on Robinson v East Med. Ctr., LP (6 NY3d 550 [2006]) and Montgomery v Federal Express Corp. (4NY3d 805 [2005]) in support of that contention is misplaced. Here, plaintiff lacked the authorityto exercise independent judgment with respect to safety issues inasmuch as he worked directly underthe supervision of two forepersons, neither of whom required or even suggested that plaintiff install roofjacks before beginning to repair the roof. Present—Martoche, J.P., Smith, Lunn, Pine andGorski, JJ.