BROWN v. CONCORD NURSERIES INC (2007)

 Plaintiffs commenced this Labor Law and common-law negligence action seeking to recover damages for injuries sustained by Richard Brown (plaintiff) when he fell from a ladder on defendant's premises. Supreme Court properly denied that part of defendant's motion for summary judgment dismissing the Labor Law § 240(1) claim.   The court properly determined that the work being performed by plaintiff at the time of the accident, i.e., the clamping of a broken torsion spring that prevented the proper functioning of the overhead door of a storage building at defendant's nursery complex, constituted the repair of a building rather than routine maintenance and thus constituted “an activity protected under the statute” (Shapiro v. ACG Equity Assoc., 233 A.D.2d 857, 857, 649 N.Y.S.2d 279;  see Bruce v. Fashion Sq. Assoc., 8 A.D.3d 1053, 778 N.Y.S.2d 823;  Short v. Durez Div.-Hooker Chems. & Plastic Corp., 280 A.D.2d 972, 972-973, 721 N.Y.S.2d 218;  cf. Abbatiello v. Lancaster Studio Assoc., 3 N.Y.3d 46, 53, 781 N.Y.S.2d 477, 814 N.E.2d 784).

 We further conclude that there are triable issues of fact concerning the adequacy of the protection afforded to plaintiff, both in terms of the ladder provided to him and the absence of other safety devices (see Trippi v. Main-Huron, LLC, 28 A.D.3d 1069, 1070, 814 N.Y.S.2d 444;  Donovan v. CNY Consol. Contrs., 278 A.D.2d 881, 718 N.Y.S.2d 760;  Williams v. Dover Home Improvement, 276 A.D.2d 626, 626-627, 714 N.Y.S.2d 318).   Finally, there is a triable issue of fact whether the conduct of plaintiff was the sole proximate cause of his injuries (see Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 960, 672 N.Y.S.2d 840, 695 N.E.2d 709, rearg. denied 92 N.Y.2d 875, 677 N.Y.S.2d 777, 700 N.E.2d 317;  Trippi, 28 A.D.3d at 1070, 814 N.Y.S.2d 444;  Tronolone v. Praxair, Inc., 22 A.D.3d 1031, 1033, 804 N.Y.S.2d 520).

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

MEMORANDUM: