GHIANDONI v. CITY OF NIAGARA FALLS (1999)

Supreme Court, Appellate Division, Fourth Department, New York.

Getulio GHIANDONI and Lucy Ghiandoni, Appellants, v. CITY OF NIAGARA FALLS, Respondent, et al., Defendants.

Decided: February 10, 1999

PRESENT: PINE, J.P., HAYES, WISNER, PIGOTT, Jr., and BALIO, JJ.

Paul William Beltz, P.C. by Russell Quinlan, Buffalo, for Plaintiffs-Appellants. Sliwa & Lane, Buffalo, for Defendant-Respondent.

Supreme Court properly denied plaintiffs' motion for partial summary judgment on liability under Labor Law § 240(1). Plaintiffs failed to establish that the absence of, or defect in, a safety device was the proximate cause of the injuries to Getulio Ghiandoni (plaintiff) (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; Felker v. Corning Inc., 90 N.Y.2d 219, 224, 660 N.Y.S.2d 349, 682 N.E.2d 950; Jackson v. Solvay Free Union School Dist., 256 A.D.2d 1150, 682 N.Y.S.2d 652). Moreover, even assuming, arguendo, that plaintiffs met their initial burden, we conclude that defendant City of Niagara Falls raised an issue of fact whether plaintiff's own action was the sole proximate cause of plaintiff's injuries (see, Weininger v. Hagedorn & Co., supra, at 960, 672 N.Y.S.2d 840, 695 N.E.2d 709).

Order unanimously affirmed without costs.

MEMORANDUM:

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