TUTTLE v. Michael LeConey, Defendant. (1999)

Order, Supreme Court, New York County (Lorraine Miller, J.), entered on or about January 9, 1998, which denied defendants-appellants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff, an independent contractor retained to organize appellants' home office, alleges that she was injured when she fell from a chair with wheels that she was using to reach an upper shelf containing fabric samples, records and other items she needed to do her job.   Plaintiff had on several previous occasions requested a stepladder to reach the upper shelves, but was told by appellants to use the chair instead, which they said was safe.   Such knowledge by appellants of plaintiff's use of the chair, and indeed their advice that she do so, raises an issue of fact as to whether they unreasonably exposed plaintiff to an unsafe condition on their premises (see, Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868;  compare, Jackson v. Supermarkets Gen. Corp., 214 A.D.2d 650, 625 N.Y.S.2d 290).   That plaintiff was an independent contractor, or that use of such a chair in such a manner posed an open and obvious danger, do not negate appellants' duty to plaintiff but simply raise issues of fact as to her comparative fault (see, Morgan v. Genrich, 239 A.D.2d 919, 659 N.Y.S.2d 638).

MEMORANDUM DECISION.