MAJEWSKI v. FOOD SERVICE INC (2002)

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

Ronald A. MAJEWSKI and Sharon Majewski, Plaintiffs-Appellants, v. U.S. FOOD SERVICE, INC., and Environment Structures, Inc., Defendants-Respondents.

Decided: February 01, 2002

PRESENT: PIGOTT, JR., P.J., HAYES, SCUDDER, BURNS, and GORSKI, JJ.

Cellino & Barnes, P.C., Brown & Tarantino, LLP, Buffalo (Ann M. Campbell of Counsel), for Plaintiff-Appellant. Hurwitz & Fine, P.C., Buffalo (Scott C. Billman of Counsel), for Defendants-Respondents.

Supreme Court erred in denying plaintiffs' motion for partial summary judgment on liability pursuant to Labor Law § 240(1). Ronald A. Majewski (plaintiff) fell from a ladder while hanging rubber strips on concrete walls using contact cement. A co-worker did not see the manner in which plaintiff began to fall but moved out of the way to avoid being hit by plaintiff as he fell. It is undisputed that, notwithstanding the nature of the work, there were no safety devices to prevent plaintiff's fall from a height, and thus plaintiffs' motion should have been granted (see, Cruz v. Turner Constr. Co., 279 A.D.2d 322, 720 N.Y.S.2d 10; Vanriel v. Weissman Real Estate, 262 A.D.2d 56, 691 N.Y.S.2d 446; Turner v. Eastman Kodak Co., 210 A.D.2d 883, 620 N.Y.S.2d 645).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the motion is granted.

MEMORANDUM:

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