PATTERSON v. KUMMAR DEVELOPMENT CORPORATION HBE (2000)

Supreme Court, Appellate Division, Fourth Department, New York.

James PATTERSON and Eloise Patterson, Plaintiffs-Appellants-Respondents, v. KUMMAR DEVELOPMENT CORPORATION, HBE Corporation, Adam's Rib Ranch Corporation and Erie County Industrial Development Agency, Defendants-Respondents-Appellants.

Decided: December 27, 2000

PRESENT: HAYES, J.P., HURLBUTT, SCUDDER, KEHOE and LAWTON, JJ.

Alan D. Voos, Buffalo, for plaintiffs-appellants-respondents. T. Alan Brown, for defendants-respondents-appellants.

Supreme Court properly denied defendants' cross motion for partial summary judgment dismissing the Labor Law § 240(1) claim but erred in denying plaintiffs' motion for partial summary judgment on that claim. Plaintiffs established that James Patterson (plaintiff) fell from an elevated surface due to the absence of any safety devices (see generally, Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513, 577 N.Y.S.2d 219, 583 N.E.2d 932), and defendants failed to raise a triable issue of fact. Defendants submitted no evidence to support their contention that the actions of plaintiff were “the sole proximate cause of his injuries” (Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 960, 672 N.Y.S.2d 840, 695 N.E.2d 709, rearg. denied 92 N.Y.2d 875, 677 N.Y.S.2d 777, 700 N.E.2d 317). We thus modify the order by granting plaintiffs' motion.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM:

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