SCHNEIDER v. Larry Rabideau, Third-Party Defendant-Respondent. (1997)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Jiudice, J.), entered September 28, 1995, as denied that branch of his motion which was for partial summary judgment on the issue of liability under Labor Law § 240(1) and granted that branch of the defendants' cross motion which was for summary judgment dismissing the Labor Law § 240(1) cause of action.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiff's motion which was for partial summary judgment on the issue of liability under Labor Law § 240(1) is granted, and that branch of the defendants' cross motion which was for summary judgment dismissing that cause of action is denied.

 The plaintiff established prima facie entitlement to partial summary judgment on his cause of action pursuant to Labor Law § 240(1) by submitting evidence indicating that while working in a house under construction, he fell through an open, unfinished stairwell, and that he had not been provided with any safety devices to help prevent or break his fall (see, Ross v Curtis-Palmer Hydro-Elec.   Co., 81 N.Y.2d 494, 500-501, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102, 482 N.E.2d 898;  Dawson v Pavarini Construction Co., 228 A.D.2d 466, 644 N.Y.S.2d 285).   The defendants failed to submit evidence sufficient to raise a triable issue of fact in this regard (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Figueroa v. Manhattanville Coll., 193 A.D.2d 778, 598 N.Y.S.2d 77).

 We find no merit to the defendants' contention that Labor Law § 241-a provides the exclusive remedy for a worker who falls through an open stairwell (see, Santos v. Sure Iron Works, 166 A.D.2d 571, 560 N.Y.S.2d 857;  Lancella v. Mario Genovesi & Sons, 162 Misc.2d 117, 615 N.Y.S.2d 621).   The legislative history of § 241-a indicates that it was intended to provide protection in addition to existing provisions of the Labor Law, and was not intended to supplant or supersede Labor Law § 240(1) (see, Mem of Indus.Commn., Bill Jacket, L. 1935, ch. 440).   To the extent that our decision in Spinelli v. St. John Nepomucene R.C. Church, 140 A.D.2d 427, 528 N.Y.S.2d 128 is to the contrary, it should no longer be followed.

The defendants' remaining contentions are without merit.

MEMORANDUM BY THE COURT.