Sherman v. Lisciandro

48 A.D.3d 1111, 849 N.Y.S.2d 857

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 2008
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Chautauqua County (Paula L. Feroleto, J.), entered November 24, 2006 in a personal injury action. The order, insofar as appealed from, granted plaintiffs’ motion for partial summary judgment and denied in part the cross motion of defendant James Marucci for summary judgment dismissing the complaint against him.

It is hereby ordered that the order so appealed from is unanimously affirmed with costs.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Edward G. Sherman (plaintiff) when he fell from a ladder while constructing a pole barn located on property owned by James Marucci (defendant). Supreme Court properly granted plaintiffs’ motion seeking partial summary judgment on liability on the Labor Law § 240 (1) claim and denied that part of the cross motion of defendant seeking summary judgment dismissing the Labor Law § 240 (1) claim against him. Plaintiffs established their entitlement to judgment as a matter of law with respect to liability on the section 240 (1) claim by submitting evidence that plaintiff was injured when the safety device furnished by the general contractor collapsed, and plaintiff fell 10 to 12 feet to the ground (see Morin v Machnick Bldrs., 4 AD3d 668, 670 [2004]; Thompson v St. Charles Condominiums, 303 AD2d 152, 154 [2003]). Defendant failed to raise a triable issue of fact to defeat the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Present—Scudder, P.J., Hurlbutt, Lunn, Green and Gorski, JJ.