Moore v. Elmwood-Franklin School

Appellate Division of the Supreme Court of New York

Moore v. Elmwood-Franklin School

249 A.D.2d 923, 672 N.Y.S.2d 221, 1998 N.Y. App. Div. LEXIS 5006

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

DecidedApril 29, 1998

StatusPublished

Cited by2 cases

This text of 249 A.D.2d 923 (Moore v. Elmwood-Franklin School) 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

Moore v. Elmwood-Franklin School, 249 A.D.2d 923, 672 N.Y.S.2d 221, 1998 N.Y. App. Div. LEXIS 5006 (N.Y. Ct. App. 1998).

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—Order reversed on the law without costs, motion denied, summary judgment granted to defendant and third cause of action dismissed. Memorandum: Plaintiff was straddling the peak of a roof when his foot slipped and he slid several feet down the roof before his fall was stopped. Plaintiff sustained severe burns during the fall when hot tar that he had been pouring spilled on him. Supreme Court granted plaintiffs motion for partial summary judgment on liability under Labor Law § 240 (1). That was error.

Although plaintiff was working at an elevated worksite, plaintiff’s slide several feet down the roof is not the type of hazard contemplated by Labor Law § 240 (1) (see, Doty v Eastman Kodak Co., 229 AD2d 961, lv dismissed in part and denied in part 89 NY2d 855; see also, Williams v White Haven Mem. Park, 227 AD2d 923). Because the underlying facts are not in dispute, the issue of liability under Labor Law § 240 (1) may be decided as a matter of law. We therefore grant summary judgment to defendant dismissing the third cause of action (see, CPLR 3212 [b]).

All concur except Lawton, J., who dissents and votes to affirm in the following Memorandum.

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—Order reversed on the law without costs, motion denied, summary judgment granted to defendant and third cause of action dismissed. Memorandum: Plaintiff was straddling the peak of a roof when his foot slipped and he slid several feet down the roof before his fall was stopped. Plaintiff sustained severe burns during the fall when hot tar that he had been pouring spilled on him. Supreme Court granted plaintiffs motion for partial summary judgment on liability under Labor Law § 240 (1). That was error.

Although plaintiff was working at an elevated worksite, plaintiff’s slide several feet down the roof is not the type of hazard contemplated by Labor Law § 240 (1) (see, Doty v Eastman Kodak Co., 229 AD2d 961, lv dismissed in part and denied in part 89 NY2d 855; see also, Williams v White Haven Mem. Park, 227 AD2d 923). Because the underlying facts are not in dispute, the issue of liability under Labor Law § 240 (1) may be decided as a matter of law. We therefore grant summary judgment to defendant dismissing the third cause of action (see, CPLR 3212 [b]).

All concur except Lawton, J., who dissents and votes to affirm in the following Memorandum.

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Bluebook (online)

249 A.D.2d 923, 672 N.Y.S.2d 221, 1998 N.Y. App. Div. LEXIS 5006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-elmwood-franklin-school-nyappdiv-1998.

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