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

Curtis LOVELESS and Debra Loveless, Plaintiffs-Respondents, v. AMERICAN REF-FUEL COMPANY OF NIAGARA, L.P., and Fluor Constructors International, Inc., Defendants-Appellants.

Decided: November 15, 2002

Present:  PINE, J.P., WISNER, HURLBUTT, SCUDDER, and BURNS, JJ. Phillips, Lytle, Hitchcock, Blaine & Huber LLP, Buffalo (Alan M. Wishnoff of Counsel), for Defendants-Appellants. Collins, Collins & Maxwell, L.L.P., Buffalo (Alan D. Voos of Counsel), for Plaintiffs-Respondents.

Supreme Court erred in granting plaintiffs' motion seeking partial summary judgment on liability under Labor Law § 240(1).   Curtis Loveless (plaintiff) was wearing a full-body harness secured with a six-foot lanyard while he performed his duties as a boilermaker from a 20-foot extension ladder that was tied off at the top and secured at its base with rubber pads.   Plaintiff slipped from the ladder and, before falling far enough for the lanyard to stop his fall, grabbed a chain hanging approximately one foot away from the ladder.   Plaintiff therefore fell approximately two feet, allegedly injuring his left shoulder as a result of the incident.   Plaintiffs failed to meet their initial burden of establishing their entitlement to judgment as a matter of law and thus the burden never shifted to defendants to raise an issue of fact (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   In support of their motion, plaintiffs failed to establish any defect in either the ladder or the safety harness furnished to and used by plaintiff, and further failed to establish that the absence of any other safety device was a proximate cause of the accident (see Ghiandoni v. City of Niagara Falls, 258 A.D.2d 923, 685 N.Y.S.2d 551;  Jackson v. Solvay Free Union School Dist., 256 A.D.2d 1150, 682 N.Y.S.2d 652;  cf.  Felker v. Corning, Inc., 90 N.Y.2d 219, 224-225, 660 N.Y.S.2d 349, 682 N.E.2d 950;  Knauer v. Anderson, 299 A.D.2d 824, 750 N.Y.S.2d 390;  Dahl v. Armor Bldg. Supply, 280 A.D.2d 970, 720 N.Y.S.2d 880;  Hilbert v. Sahlen Packing Co., 267 A.D.2d 940, 941, 700 N.Y.S.2d 890).

It is hereby ORDERED that the order so appealed from be and the same hereby is reversed on the law without costs and the motion is denied.

We agree that Supreme Court erred in granting plaintiffs' motion seeking partial summary judgment on liability under Labor Law § 240(1), but our reasoning differs from that of the majority.   In our view, plaintiffs met their initial burden on the motion by demonstrating that, because the ladder used by Curtis Loveless (plaintiff) “did not prevent plaintiff from falling [,] * * * the ‘core’ objective of section 240(1) was not met” (Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 561, 606 N.Y.S.2d 127, 626 N.E.2d 912).   We conclude, however, that defendants raised an issue of fact whether the safety devices gave “proper protection” to plaintiff (§ 240[1];  cf.  Donovan v. CNY Consol. Contrs., 278 A.D.2d 881, 718 N.Y.S.2d 760;  Girty v. Niagara Mohawk Power Corp., 262 A.D.2d 1012, 1013-1014, 691 N.Y.S.2d 822).