ARNOLD v. Barone Homes, Inc., Defendant-Respondent. (2007)

Plaintiffs commenced this Labor Law and common-law negligence action seeking damages for injuries sustained by Patrick V. Arnold (plaintiff) when he fell approximately nine feet to the ground from a plank on an I-beam above the unfinished basement of a house under construction.   Contrary to plaintiffs' contention, Supreme Court properly granted those parts of defendants' motion seeking summary judgment dismissing the Labor Law § 240(1) and § 241(6) causes of action against Barone Homes, Inc. (defendant), although our reasoning differs from that of the court with respect to section 241(6).   The record establishes that, at the time he fell, plaintiff was in the garage collecting an extension cord that was caught on an unidentified object in the basement below him and that, instead of using an available ladder in his effort to collect the extension cord, he stood on a slippery plank on top of an I-beam.   Because a ladder was “readily available, plaintiff's ‘normal and logical response’ should have been to go [and] get” it (Montgomery v. Federal Express Corp., 4 N.Y.3d 805, 806, 795 N.Y.S.2d 490, 828 N.E.2d 592).   We thus conclude on the record before us that the failure of plaintiff to use the available ladder was the sole proximate cause of his injuries, requiring summary judgment dismissing the Labor Law § 240(1) and § 241(6) causes of action (see id.;  Yedynak v. Citnalta Constr. Corp., 22 A.D.3d 840, 803 N.Y.S.2d 705;  Plass v. Solotoff, 5 A.D.3d 365, 367, 773 N.Y.S.2d 84, lv. denied 2 N.Y.3d 705, 780 N.Y.S.2d 310, 812 N.E.2d 1260).   The fact that defendant raises that contention for the first time on appeal with respect to the section 241(6) cause of action is of no moment.   That contention was before the court with respect to the section 240(1) cause of action, and it thus cannot be said that plaintiffs lacked “the opportunity to make a factual showing or legal argument that might have undermined defendant['s] position” (Bingham v. New York City Tr. Auth., 99 N.Y.2d 355, 359, 756 N.Y.S.2d 129, 786 N.E.2d 28;  see generally Edwards v. Siegel, Kelleher & Kahn, 26 A.D.3d 789, 790, 811 N.Y.S.2d 828;  Oram v. Capone, 206 A.D.2d 839, 840, 615 N.Y.S.2d 799).

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

MEMORANDUM: