BAKER v. ESSEX HOMES OF WESTERN NEW YORK INC (2008)

 Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained when he fell from the roof of a building owned by defendant.   According to plaintiff, he was standing on bundles of shingles while he was repairing the roof, and he fell when the bundles, which were held in place by roofing spikes, broke apart underneath his feet.   Supreme Court properly granted plaintiff's motion seeking partial summary judgment on liability on the claim pursuant to Labor Law § 240(1).   It is undisputed that there were no safety devices in place to protect plaintiff from falling from the roof, and plaintiff established as a matter of law that the absence of appropriate safety devices was a proximate cause of his injuries (see Felker v. Corning Inc., 90 N.Y.2d 219, 224, 660 N.Y.S.2d 349, 682 N.E.2d 950;  Howe v. Syracuse Univ., 306 A.D.2d 891, 760 N.Y.S.2d 922).   We reject defendant's contention that there is an issue of fact whether the failure of plaintiff to use safety devices that were available elsewhere at the work site but that were not in place on the roof was the sole proximate cause of his injuries.   Defendant's reliance on Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550, 814 N.Y.S.2d 589, 847 N.E.2d 1162 and Montgomery v. Federal Express Corp., 4 N.Y.3d 805, 795 N.Y.S.2d 490, 828 N.E.2d 592 in support of that contention is misplaced.   Here, plaintiff lacked the authority to exercise independent judgment with respect to safety issues inasmuch he worked directly under the supervision of two forepersons, neither of whom required or even suggested that plaintiff install roof jacks before beginning to repair the roof.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: