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GREGORY MILLER, PLAINTIFF–RESPONDENT, v. WEBB OF BUFFALO, LLC, DEFENDANT–RESPONDENT -APPELLANT, BURKE HOMES, LLC, AND TIME WARNER CABLE, INC., DEFENDANTS–APPELLANTS
MEMORANDUM AND ORDER
-RESPONDENTS.
Appeals and cross appeal from an order of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered December 3, 2013. The order denied the motion and cross motions of defendants for summary judgment.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion and cross motions are granted, and the complaint and cross claims are dismissed.
Supreme Court erred in denying the motion of defendant Burke Homes, LLC, and the cross motions of defendants Webb of Buffalo, LLC, and Time Warner seeking summary judgment dismissing the complaint and cross claims against them. Defendants met their burden of establishing as a matter of law that plaintiff's conduct was the sole proximate cause of the accident, and plaintiff failed to raise a triable issue of fact (see Nalepa v South Hill Bus. Campus, LLC, 123 AD3d 1190, 1193; Kerrigan v. TDX Constr. Corp., 108 AD3d 468, 471, lv denied 22 NY3d 862; Capellan v. King Wire Co., 19 AD3d 530, 532). Defendants established that there was no causal relationship between any duties owed by them to plaintiff pursuant to the Labor Law or the common law and the injuries plaintiff sustained, and that they could not reasonably have foreseen that a person in plaintiff's circumstances would not wait for the ladder inside the building (see Mack v. Altmans Stage Light. Co., 98 A.D.2d 468, 472). Before he decided to straddle the windowsill, “ ‘[p]laintiff was not in an emergent situation. He was in a position of absolute safety, although subject to inconvenience’ “ (id., quoting Guida v. 154 W. 14 th St. Co., 13 A.D.2d 695, 696, affd 11 N.Y.2d 731). Plaintiff was aware that the ladder would be returned “when he decided to put his safety at risk” by straddling the windowsill, and plaintiff's conduct thus superseded any alleged breach of duty by defendants “and terminated defendants' liability for his injuries” (Egan v. A.J. Constr. Corp., 94 N.Y.2d 839, 841; see Misirlakis v East–Coast Entertainment Props., 297 A.D.2d 312, 312, lv denied 100 N.Y.2d 637; Mack, 98 A.D.2d at 472–473).
Frances E. Cafarell
Clerk of the Court
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Docket No: CA 14–01716
Decided: March 27, 2015
Court: Supreme Court, Appellate Division, Fourth Department.
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Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
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