BAILEY v. BOARD OF EDUCATION OF SKANEATELES CENTRAL SCHOOL DISTRICT (2005)

Supreme Court erred in denying plaintiff's motion seeking partial summary judgment on liability on the cause of action alleging a violation of Labor Law § 240(1) and in granting in part defendants' cross motion seeking summary judgment dismissing that cause of action.   We note at the outset that the cross motion at issue was brought by defendant Burns Electric Co., Inc. and sought summary judgment dismissing the complaint in its entirety and that the court treated the cross motion as if it were brought by all defendants.   Thus, we do so as well.

At the time of his accident, plaintiff was on the third rung from the top of an eight-foot scissor ladder and was pulling cable through the ceiling using a jet line attached to and running the length of the cable.   Plaintiff was leaning backward while pulling the cable by means of the jet line, and he fell from the ladder when the jet line broke.   We agree with the court that the ladder was not defective and was properly placed (cf. Burke v. APV Crepaco, 2 A.D.3d 1279, 770 N.Y.S.2d 510).   We further conclude, however, that plaintiff was subjected to a second elevation-related risk, i.e., the known risk that the jet line could break, causing plaintiff to lose his balance and fall from the ladder when the tension from that line was released (see Felker v. Corning Inc., 90 N.Y.2d 219, 224, 660 N.Y.S.2d 349, 682 N.E.2d 950).   Contrary to defendants' contention, the record establishes that the scaffold and lanyards on the work site were not available for plaintiff's use (cf. Montgomery v. Federal Express Corp., 4 N.Y.3d 805, 795 N.Y.S.2d 490, 828 N.E.2d 592).   We therefore conclude that “the absence of any protection [from the risk at issue] was the proximate cause of plaintiff's injuries as a matter of law” (Felker, 90 N.Y.2d at 225, 660 N.Y.S.2d 349, 682 N.E.2d 950;  see Labor Law § 240[1] ).   We have reviewed the remaining contentions of the parties and conclude that they are without merit.   We therefore modify the order accordingly.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying that part of defendants' cross motion with respect to the third cause of action in its entirety, reinstating that cause of action in its entirety and granting the motion and as modified the order is affirmed without costs.

MEMORANDUM: