SMITH v. DIETER (2005)

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

Jamie G. SMITH, Plaintiff-Appellant, v. Edward R. DIETER, Individually and Doing Business as Barns, etc., Defendant-Respondent, et al., Defendant.

Decided: February 04, 2005

PRESENT: HURLBUTT, J.P., GORSKI, MARTOCHE, SMITH, AND LAWTON, JJ.

Moran & Kufta, P.C., Rochester (Mark J. Valerio of Counsel), for Plaintiff-Appellant. Petrone & Petrone, P.C., Rochester (Elizabeth C. Clarke of Counsel), for Defendant-Respondent Edward R. Dieter, Individually and Doing Business as Barns, etc.

Plaintiff commenced this action to recover damages for injuries sustained when the ladder that he was using to install louver vents in walls of a barn slid, causing him to fall to the ground. Supreme Court erred in denying that part of plaintiff's motion that sought partial summary judgment against Edward R. Dieter, individually and doing business as Barns, Etc. (defendant). Plaintiff established his entitlement to judgment on Labor Law § 240(1) liability as a matter of law, and defendant failed to raise a triable issue of fact whether plaintiff's conduct was the sole proximate cause of the accident (see Alligood v. Hospitality West, 8 A.D.3d 1102, 778 N.Y.S.2d 360).

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

MEMORANDUM:

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