Lambert v. State

Appellate Division of the Supreme Court of New York

Lambert v. State

236 A.D.2d 447, 654 N.Y.S.2d 599, 1997 N.Y. App. Div. LEXIS 1186

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

DecidedFebruary 10, 1997

StatusPublished

Cited by1 cases

This text of 236 A.D.2d 447 (Lambert v. State) 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

Lambert v. State, 236 A.D.2d 447, 654 N.Y.S.2d 599, 1997 N.Y. App. Div. LEXIS 1186 (N.Y. Ct. App. 1997).

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Opinion

—In a claim to recover damages for wrongful death and conscious pain and suffering, the State of New York appeals, as limited by its brief, from (1) so much of an order of the Court of Claims (Blinder, J.), dated April 13, 1995, as (a) granted the claimant’s motion for partial summary judgment on the issue of liability under Labor Law § 240 (1), and (b) denied its cross motion to dismiss the wrongful death cause of action, and (2) so much of an order of the same court, dated December 28, 1995, as, upon renewal, adhered to the prior determination.

Ordered that the appeal from the order dated April 13, 1995, is dismissed, without costs or disbursements, as that order was superseded by the order dated December 28, 1995, made upon renewal; and it is further,

Ordered that the order dated December 28,1995, is modified, on the law, by deleting the provision thereof which granted the claimant’s motion, and substituting therefor a provision denying the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Court of Claims erred in granting the claimant’s motion for partial summary judgment on the issue of liability under Labor Law § 240 (1). On the instant record, we may not conclude as a matter of law that Labor Law § 240 (1) was violated and that the violation was a proximate cause of the accident (see, Bland v Manocherian, 66 NY2d 452; Tzambazis v Argo Mgt. Co., 230 AD2d 843; Skalko v Marshall’s, Inc., 229 AD2d 569; Zeitner v Herbmax Sharon Assocs., 194 AD2d 414). Issues of fact exist as to whether the decedent was provided with "proper protection” under the statute (Labor Law § 240 [1]; see, Barbuzano v Rem Gen. Constr., 202 AD2d 462; Kalofonos v State of New York, 104 AD2d 75).

The court correctly denied the State’s cross motion to dismiss the claimant’s wrongful death cause of action (see, CPLR 3212 KD.

The State’s remaining contentions are academic. Mangano, P. J., Rosenblatt, Copertino and Krausman, JJ., concur.

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—In a claim to recover damages for wrongful death and conscious pain and suffering, the State of New York appeals, as limited by its brief, from (1) so much of an order of the Court of Claims (Blinder, J.), dated April 13, 1995, as (a) granted the claimant’s motion for partial summary judgment on the issue of liability under Labor Law § 240 (1), and (b) denied its cross motion to dismiss the wrongful death cause of action, and (2) so much of an order of the same court, dated December 28, 1995, as, upon renewal, adhered to the prior determination.

Ordered that the appeal from the order dated April 13, 1995, is dismissed, without costs or disbursements, as that order was superseded by the order dated December 28, 1995, made upon renewal; and it is further,

Ordered that the order dated December 28,1995, is modified, on the law, by deleting the provision thereof which granted the claimant’s motion, and substituting therefor a provision denying the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Court of Claims erred in granting the claimant’s motion for partial summary judgment on the issue of liability under Labor Law § 240 (1). On the instant record, we may not conclude as a matter of law that Labor Law § 240 (1) was violated and that the violation was a proximate cause of the accident (see, Bland v Manocherian, 66 NY2d 452; Tzambazis v Argo Mgt. Co., 230 AD2d 843; Skalko v Marshall’s, Inc., 229 AD2d 569; Zeitner v Herbmax Sharon Assocs., 194 AD2d 414). Issues of fact exist as to whether the decedent was provided with "proper protection” under the statute (Labor Law § 240 [1]; see, Barbuzano v Rem Gen. Constr., 202 AD2d 462; Kalofonos v State of New York, 104 AD2d 75).

The court correctly denied the State’s cross motion to dismiss the claimant’s wrongful death cause of action (see, CPLR 3212 KD.

The State’s remaining contentions are academic. Mangano, P. J., Rosenblatt, Copertino and Krausman, JJ., concur.

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236 A.D.2d 447, 654 N.Y.S.2d 599, 1997 N.Y. App. Div. LEXIS 1186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lambert-v-state-nyappdiv-1997.

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