Fulton v. Walton Street Associates

Appellate Division of the Supreme Court of New York

Fulton v. Walton Street Associates

201 A.D.2d 921, 609 N.Y.S.2d 881, 1994 N.Y. App. Div. LEXIS 2096

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 4, 1994

DocketAppeal No. 1

StatusPublished

This text of 201 A.D.2d 921 (Fulton v. Walton Street Associates) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fulton v. Walton Street Associates, 201 A.D.2d 921, 609 N.Y.S.2d 881, 1994 N.Y. App. Div. LEXIS 2096 (N.Y. Ct. App. 1994).

Pincite

Opinion

Order insofar as appealed from unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying the motion of plaintiff for partial summary judgment on the issue of liability under Labor Law § 240 (1). Plaintiff established his initial entitlement to judgment in his favor as a matter of law by the submission of proof in evidentiary form that defendants violated the statute and that the violation was a proximate cause of his injury (see, Armstrong v Sherrill-Kenwood Water Disk, 135 AD2d 1081). Defendants thereafter failed to offer evidentiary proof in admissible form demonstrating that there are factual issues that require a trial (see, Zuckerman v City of New York, 49 NY2d 557, 562). Defendants’ reliance on Smith v Hooker Chems. & Plastics Corp. (89 AD2d 361, 365, appeal dismissed 58 NY2d 824) is misplaced because there has been no showing that plaintiff refused to use the safety devices that were provided by the owner or employer (see, Gordon v Eastern Ry. Supply, 82 NY2d 555; Stolt v General Foods Corp., 81 NY2d 918, 920; Hagins v State of New York, 81 NY2d 921, 922-923). [922]*922(Appeal from Order of Supreme Court, Onondaga County, Pooler, J. — Summary Judgment.) Present — Pine, J. P., Fallon, Doerr, Davis and Boehm, JJ.

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Order insofar as appealed from unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying the motion of plaintiff for partial summary judgment on the issue of liability under Labor Law § 240 (1). Plaintiff established his initial entitlement to judgment in his favor as a matter of law by the submission of proof in evidentiary form that defendants violated the statute and that the violation was a proximate cause of his injury (see, Armstrong v Sherrill-Kenwood Water Disk, 135 AD2d 1081). Defendants thereafter failed to offer evidentiary proof in admissible form demonstrating that there are factual issues that require a trial (see, Zuckerman v City of New York, 49 NY2d 557, 562). Defendants’ reliance on Smith v Hooker Chems. & Plastics Corp. (89 AD2d 361, 365, appeal dismissed 58 NY2d 824) is misplaced because there has been no showing that plaintiff refused to use the safety devices that were provided by the owner or employer (see, Gordon v Eastern Ry. Supply, 82 NY2d 555; Stolt v General Foods Corp., 81 NY2d 918, 920; Hagins v State of New York, 81 NY2d 921, 922-923). [922]*922(Appeal from Order of Supreme Court, Onondaga County, Pooler, J. — Summary Judgment.) Present — Pine, J. P., Fallon, Doerr, Davis and Boehm, JJ.

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Bluebook (online)

201 A.D.2d 921, 609 N.Y.S.2d 881, 1994 N.Y. App. Div. LEXIS 2096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fulton-v-walton-street-associates-nyappdiv-1994.

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