granting defendants' motion for summary judgment dismissing plaintiff's section 240 claim, where plaintiff's use of a bucket to ascend a rooftop, and a leap to descend, was not a "normal and logical response," as a ladder was availableSummary of this case from Ambrosi v. 1085 Park Avenue LLC
Decided March 24, 2005.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered August 21, 2003. The Appellate Division (1) reversed, on the law, a judgment of the Supreme Court, New York County (Marcy Friedman, J.), which, insofar as appealed from, had granted plaintiff's cross motion for partial summary judgment against defendants Federal Express Corporation and JM Dennis Corp., on the issue of liability on his Labor Law § 240 (1) claim, and denied third-party defendant Fortune Interior Dismantling Corp.'s cross motion for summary judgment dismissing the third-party complaint, (2) denied plaintiff's cross motion, (3) granted defendants' cross motion for summary judgment dismissing the complaint, and (4) granted third-party defendant's cross motion.
Montgomery v. Federal Express Corp., 307 AD2d 865, affirmed.
Pollack, Pollack, Isaac De Cicco, New York City ( Brian J. Isaac of counsel), for appellant.
Geringer Dolan LLP, New York City ( John T. McNamara of counsel), for respondents.
Third-party defendant-respondent precluded.
Before: Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed with costs.
Plaintiff, who was employed as a helper by an elevator company, and Peter Mazzei, an elevator mechanic, were assigned to do work in an elevator "motor room" located some four feet above the roof level of a building. Arriving on the roof, plaintiff and Mazzei found that stairs that had previously led from the roof to the motor room had been removed. There was no ladder in the immediate vicinity, but ladders were available at the job site.
Rather than go and get a ladder, plaintiff and Mazzei climbed to the motor room by standing on an inverted bucket. When he left the motor room, plaintiff jumped down to the roof, injuring his knee in the process.
We agree with the Appellate Division that, since ladders were readily available, plaintiff's "normal and logical response" should have been to go get one. Plaintiff's choice to use a bucket to get up, and then to jump down, was the sole cause of his injury, and he is therefore not entitled to recover under Labor Law § 240 (1) ( Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280).
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals ( 22 NYCRR 500.4), order affirmed, with costs, in a memorandum.