Newman v. C. Destro Development Co.

46 A.D.3d 1452, 848 N.Y.S.2d 463

Opinion

Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered March 21, 2007 in a personal injury action. The order denied plaintiffs motion for partial summary judgment on liability on the Labor Law § 240 (1) cause of action against defendant C. Destro Development Co., Inc.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law with costs and the motion is granted.

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when he fell from an unstable ladder while installing a nine-foot fence. Supreme Court erred in denying plaintiffs motion seeking partial summary judgment on liability with respect to the Labor Law § 240 (1) cause of action against the general contractor, C. Destro Development Co., Inc. (defendant). Plaintiff met his initial burden by establishing as a matter of law that the ladder failed to provide him with adequate protection, and defendant failed to raise a triable issue of fact whether plaintiffs conduct was the sole proximate cause of the accident (see Burke v APV Crepaco, 2 AD3d 1279 [2003]; Petit v Board of Educ. of W. Genesee School Dist., 307 AD2d 749 [2003]; Boncore v Temple Beth Zion, 299 AD2d 953 [2002]). Present—Hurlbutt, J.P., Martoche, Fahey, Peradotto and Green, JJ.