McLean v. Martin E. Vahue & Son Builders, Inc.

Appellate Division of the Supreme Court of New York

McLean v. Martin E. Vahue & Son Builders, Inc.

210 A.D.2d 999, 620 N.Y.S.2d 634, 1994 N.Y. App. Div. LEXIS 13562

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

DecidedDecember 23, 1994

StatusPublished

Cited by4 cases

This text of 210 A.D.2d 999 (McLean v. Martin E. Vahue & Son Builders, Inc.) 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

McLean v. Martin E. Vahue & Son Builders, Inc., 210 A.D.2d 999, 620 N.Y.S.2d 634, 1994 N.Y. App. Div. LEXIS 13562 (N.Y. Ct. App. 1994).

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Opinion

—Order insofar as appealed from unanimously reversed on the law with costs and motion granted. Memorandum: Plaintiff, a carpenter, was injured when he fell over 20 feet to the ground from the roof of a home under construction. Supreme Court erred in denying plaintiff’s motion for partial summary judgment on the issue of liability under Labor Law § 240 (1). Plaintiff submitted proof in admissible form that he was engaged in the erection of a building, that he fell from an elevated work site and that there were no safety devices "so constructed, placed and operated as to give proper protection to a person so employed” (Labor Law § 240 [1]; see, Brown v Sagamore Hotel, 184 AD2d 47, 51; Walsh v Baker, 172 AD2d 1038, 1039). In opposition to the motion, defendant and third-party defendant failed to submit evidence showing the existence of a triable issue of fact (see, Walsh v Baker, supra, at 1039; Heath v Soloff Constr., 107 AD2d 507, 511). "[T]he fact that the accident was unwitnessed does not require a trial; plaintiff’s account of the accident was uncontroverted” (Madigan v United Parcel Serv., 193 AD2d 1102, 1103; see, Allman v Ciminelli Constr. Co., 184 AD2d 1022; Walsh v Baker, supra). We reject defendant’s contention that the accident was caused by plaintiff’s refusal to use other available safety devices. A contractor may not " 'escape the imposition of absolute liability merely by demonstrating that there was present somewhere at the job site [another safety device] which might have been used by a worker for the safer performance of his assigned work’ ” (Heath v Soloff Constr., supra, at 512, quoted in Brown v Sagamore Hotel, supra, at 51-52). (Appeal from Order of Supreme Court, Ontario County, Henry, Jr., J.— Labor Law § 240 [1].) Present—Denman, P. J., Green, Balio, Callahan and Boehm, JJ.

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—Order insofar as appealed from unanimously reversed on the law with costs and motion granted. Memorandum: Plaintiff, a carpenter, was injured when he fell over 20 feet to the ground from the roof of a home under construction. Supreme Court erred in denying plaintiff’s motion for partial summary judgment on the issue of liability under Labor Law § 240 (1). Plaintiff submitted proof in admissible form that he was engaged in the erection of a building, that he fell from an elevated work site and that there were no safety devices "so constructed, placed and operated as to give proper protection to a person so employed” (Labor Law § 240 [1]; see, Brown v Sagamore Hotel, 184 AD2d 47, 51; Walsh v Baker, 172 AD2d 1038, 1039). In opposition to the motion, defendant and third-party defendant failed to submit evidence showing the existence of a triable issue of fact (see, Walsh v Baker, supra, at 1039; Heath v Soloff Constr., 107 AD2d 507, 511). "[T]he fact that the accident was unwitnessed does not require a trial; plaintiff’s account of the accident was uncontroverted” (Madigan v United Parcel Serv., 193 AD2d 1102, 1103; see, Allman v Ciminelli Constr. Co., 184 AD2d 1022; Walsh v Baker, supra). We reject defendant’s contention that the accident was caused by plaintiff’s refusal to use other available safety devices. A contractor may not " 'escape the imposition of absolute liability merely by demonstrating that there was present somewhere at the job site [another safety device] which might have been used by a worker for the safer performance of his assigned work’ ” (Heath v Soloff Constr., supra, at 512, quoted in Brown v Sagamore Hotel, supra, at 51-52). (Appeal from Order of Supreme Court, Ontario County, Henry, Jr., J.— Labor Law § 240 [1].) Present—Denman, P. J., Green, Balio, Callahan and Boehm, JJ.

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210 A.D.2d 999, 620 N.Y.S.2d 634, 1994 N.Y. App. Div. LEXIS 13562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclean-v-martin-e-vahue-son-builders-inc-nyappdiv-1994.

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