Barbuzano v. Rem General Construction, Inc.

202 A.D.2d 462, 610 N.Y.S.2d 798, 1994 N.Y. App. Div. LEXIS 2394

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 1994
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Kutner, J.), dated April 7, 1992, as denied the plaintiffs motion for partial summary judgment on the issue of liability.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

"Except in the extreme case where no protective device is furnished * * * whether 'proper protection’ has been provided under Labor Law § 240 (1) is an issue of fact” (Blair v Rosen-Michaels, Inc., 146 AD2d 863, 865; Kalofonos v State of New York, 104 AD2d 75). The plaintiff herein contends that there were no safety devices available at the work site. In contrast, the defendant argues that a safety belt and ladder were available for the plaintiffs use, however, he refused to use them. Accordingly, there are issues of fact which preclude the granting of summary judgment in favor of the plaintiff (see, Styer v Vita Constr., 174 AD2d 662; Zeitner v Herbmax Sharon Assocs., 194 AD2d 414). Thompson, J. P., Santucci, Friedmann and Florio, JJ., concur.