| Beardslee v Cornell Univ. |
| 2010 NY Slip Op 03207 [72 AD3d 1371] |
| April 22, 2010 |
| Appellate Division, Third Department |
| Kenneth C. Beardslee et al., Respondents, v Cornell University etal., Appellants. (And a Third-Party Action.) |
—[*1] Law Office of Alfred Paniccia Jr., Binghamton (Alfred Paniccia, Jr. of counsel), forrespondents.
Malone Jr., J. Appeal from an order of the Supreme Court (Mulvey, J.), entered May 29,2009 in Tompkins County, which granted plaintiffs' motion for partial summary judgment on theissue of liability pursuant to Labor Law § 240 (1).
Plaintiff Kenneth C. Beardslee (hereinafter plaintiff), a carpenter, fell from the top of aladder while he was working on the erection of form walls for the pouring of a foundation for anew building on the premises of defendant Cornell University in the City of Ithaca, TompkinsCounty. Plaintiff and his wife, derivatively, thereafter commenced this action against Cornell, asthe landowner, and defendants Welliver McGuire, Inc. and McCarthy Building Companies, Inc.,both of which acted in a joint venture as the general contractor for the construction project.Plaintiffs asserted claims for negligence and for violations of Labor Law § 200 (1),§ 240 (1) and § 241 (6) and, following joinder of issue, plaintiffs moved forsummary judgment on the issue of liability under Labor Law § 240 (1). Supreme Courtgranted that motion and defendants appeal.[*2]
As is relevant here, to succeed on their cause of actionunder Labor Law § 240 (1), plaintiffs were required to establish that the safety devicesprovided by defendants were inadequate or defective and that this violation of the statute was aproximate cause of plaintiff's injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280,287 [2003]; Intelisano v Sam GrecoConstr., Inc., 68 AD3d 1321, 1322 [2009]). In that regard, plaintiffs established thatdefendants provided plaintiff with a ladder that did not reach the top of the form wall and that, inorder to reach the top of the wall, he had to climb up the side of it using the safety devicesprovided for this purpose. According to plaintiff, this method of ascension at times left himunsecured by safety devices, and he fell when the ladder he was on "shifted" after a waler hegrabbed in the wall gave way as he was attempting to attach his lanyard. However, defendantsprovided evidence regarding not only the stability of the ladder but also the type and adequacy ofthe safety devices they provided to plaintiff, which contradicted the evidence offered byplaintiffs (see Dalaba v City ofSchenectady, 61 AD3d 1151, 1152 [2009]; Weinberg v Alpine Improvements, LLC, 48 AD3d 915, 917[2008]). "Where, as here, the worker has been provided with a safety device, whether the deviceafforded proper protection is ordinarily a question of fact to be resolved at trial" (Ball v Cascade Tissue Group-N.Y.,Inc., 36 AD3d 1187, 1188 [2007] [citations omitted]). The simple fact that plaintiff fellfrom a ladder does not automatically establish liability on the part of defendants (see Canino v Electronic Tech. Co., 28AD3d 932, 933 [2006]). Considering that defendants raised issues of fact regarding the typeand adequacy of the safety devices provided by them, as well as the proximate cause of plaintiff'sinjuries, plaintiffs' motion for partial summary judgment should have been denied.
Peters, J.P., Kavanagh and McCarthy, JJ., concur. Ordered that the order is reversed, on thelaw, with costs, and motion denied.