Opinion
June 16, 2000.
Appeal from Order of Supreme Court, Erie County, LaMendola, J. — Summary Judgment.
PRESENT: PIGOTT, JR., P.J., HAYES, SCUDDER, KEHOE AND BALIO, JJ.
Order reversed on the law without costs and motion granted. Memorandum: David G. Adderly (plaintiff) was installing windows in an apartment building when the ladder upon which he was working "kicked out" from under him, causing him to fall 15 feet to the ground. The ladder was not tied off at the time of plaintiff's accident. Supreme Court erred in denying plaintiffs' motion for partial summary judgment on liability pursuant to Labor Law § 240 Lab. (1). Plaintiffs met their initial burden by submitting evidence establishing that the ladder was not so "placed * * * as to give proper protection to" plaintiff (Labor Law § 240 Lab. [1]; see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 561-562; Szymanski v. Nabisco, Inc., 256 A.D.2d 1154, 1155), and defendants failed to raise an issue of fact whether plaintiff's conduct was the sole proximate cause of the accident ( see, Lawrence v. Forest City Ratner Cos., 268 A.D.2d 380 [decided Jan. 27, 2000]; cf., Weininger v. Hagedorn Co., 91 N.Y.2d 958, rearg denied 92 N.Y.2d 875).
All concur except Balio, J., who dissents and votes to affirm in the following Memorandum:
I respectfully dissent and would affirm on the ground that plaintiffs have not established as a matter of law that the ladder itself or the safety spikes attached to it were defective, nor have they established that the absence of any other safety device was a proximate cause of the accident ( see, Felker v. Corning Inc., 90 N.Y.2d 219, 224; Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 524, rearg denied 65 N.Y.2d 1054; Duda v. Rouse Constr. Corp., 32 N.Y.2d 405, 410). Thus, I conclude that plaintiffs did not meet their initial burden of establishing their entitlement to judgment on liability as a matter of law with respect to the Labor Law § 240 Lab. (1) claim. Even assuming that plaintiffs met their initial burden, I further conclude that defendants raised a triable issue of fact whether the actions of plaintiff David G. Adderly were the sole proximate cause of his injuries ( see, Weininger v. Hagedorn Co., 91 N.Y.2d 958, 960, rearg denied 92 N.Y.2d 875).