BAILEY v. BENDERSON 26 1989 1989 26 1989 1989 26 1989 1989 26 1989 1989 NB DS (1998)

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

Henry BAILEY and Joanne Bailey, Respondents, v. Ronald BENDERSON, Randall Benderson and David Baldauf, as Trustees under a Trust Agreement Dated December 26, 1989 Known as the Shaun Benderson 1989 Trust, Ronald Benderson, Randall Benderson and David Baldauf, as Trustees under a Trust Agreement Dated December 26, 1989 Known as the Evan Benderson 1989 Trust, Ronald Benderson, Randall Benderson and David Baldauf, as Trustees under a Trust Agreement Dated December 26, 1989 Known as the Todd Benderson 1989 Trust, Ronald Benderson, Randall Benderson and David Baldauf, as Trustees under a Trust Agreement Dated December 26, 1989 Known as the Brett Benderson 1989 Trust, Delta-Sonic Carwash Systems, Inc., Known as NB/DS Associates, Bagel Brothers Cheektowaga, Inc., Buffalo Hotel Supply Co., Inc., Appellants,
ADF Construction Corp., Respondent. The BENDERSON TRUSTS, et al., Third-Party Plaintiffs, v. BUFFALO PLUMBING CO., INC., and Erie Excavating Corporation, Third-Party Defendants-Respondents.
BUFFALO HOTEL SUPPLY CO., INC., et al., Third-Party Plaintiffs, v. BUFFALO PLUMBING CO., INC., and Erie Excavating Corporation, Third-Party Defendants-Respondents.

Decided: November 13, 1998

Before PINE, J.P., HAYES, CALLAHAN, BALIO and BOEHM, JJ.

Chelus, Herdzik & Speyer by Michael Chelus, Buffalo, for Defendants-Appellants and Third-Party Plaintiffs-Appellants. Gibson, McAskill & Crosby, Thomas Smith by Norman Viti, Buffalo, for Defendant-Appellant and Third-Party Plaintiff-Appellant. Martin Zuffranieri, Buffalo, for Plaintiffs-Respondents. Brown & Kelly, LLP, Buffalo, for Defendant-Respondent ADF Const. Law Offices of Louis Siegel, Buffalo, for Third-Party Defendant-Respondent Buffalo Plumbing. Law Offices of Kevin Walsh, Buffalo, for Third-Party Defendant-Respondent Erie Excavating.

Henry Bailey (plaintiff) was injured while working at a construction site when he was struck by a ladder that was blown over by a gust of wind. Because one end of the ladder had been at ground level and plaintiff was walking at ground level, the ladder did not constitute a falling object nor did plaintiff's work involve an elevation-related risk encompassed by Labor Law § 240(1) (see, Melo v. Consolidated Edison Co. of N. Y., 92 N.Y.2d 909, 680 N.Y.S.2d 47, 702 N.E.2d 832; Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 491, 634 N.Y.S.2d 35, 657 N.E.2d 1318, rearg. denied 87 N.Y.2d 969, 642 N.Y.S.2d 197, 664 N.E.2d 1260; Corsaro v. Mt. Calvary Cemetery, 214 A.D.2d 950, 626 N.Y.S.2d 634). Thus, we modify the order by denying plaintiffs' motion for partial summary judgment on the Labor Law § 240(1) claim and by granting the cross motion of defendant Buffalo Hotel Supply Co., Inc. for summary judgment dismissing that claim against it.

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

MEMORANDUM:

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