WILLIAMS v. CITY OF NIAGARA FALLS

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

William M. WILLIAMS, Jr. and Janice Williams, Plaintiffs-Appellants, v. CITY OF NIAGARA FALLS and City of Niagara Falls Department of Engineering and Inspections, Defendants-Respondents.

Decided: September 28, 2007

PRESENT:  GORSKI, J.P., SMITH, CENTRA, FAHEY, AND GREEN, JJ. Collins & Maxwell, L.L.P., Buffalo (Alan D. Voos of Counsel), for Plaintiffs-Appellants. Brown & Kelly, LLP, Buffalo (Nicole B. Palmerton of Counsel), for Defendants-Respondents.

 Plaintiffs commenced this action seeking damages for injuries sustained by William M. Williams, Jr. (plaintiff) when he fell from the roof of a building owned by defendant City of Niagara Falls.   We conclude that Supreme Court erred in denying plaintiffs' motion for partial summary judgment on liability on the Labor Law § 240(1) claim.   Plaintiffs established their entitlement to judgment as a matter of law with respect to Labor Law § 240(1) by establishing that plaintiff was not furnished with the requisite safety devices and that the absence of appropriate safety devices was a proximate cause of his injuries (see Howe v. Syracuse Univ., 306 A.D.2d 891, 760 N.Y.S.2d 922), and defendants thus failed to raise an issue of fact whether the actions of plaintiff were the sole proximate cause of his injuries (see Whiting v. Dave Hennig, Inc., 28 A.D.3d 1105, 1106, 815 N.Y.S.2d 382).   Contrary to defendants' further contention, the presence of a safety harness in plaintiff's truck and “[t]he mere presence of [other safety devices] somewhere at the worksite” does not satisfy defendants' duty to provide appropriate safety devices (Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 524, 493 N.Y.S.2d 102, 482 N.E.2d 898, rearg. denied 65 N.Y.2d 1054, 494 N.Y.S.2d 1033, 484 N.E.2d 1055).

It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs and the motion is granted.

MEMORANDUM: