MILLIGAN v. ALLIED BUILDERS INC

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

Paul MILLIGAN, Plaintiff-Respondent, v. ALLIED BUILDERS, INC. and the Pike Company, Inc., Defendants-Appellants.

Decided: November 17, 2006

PRESENT:  HURLBUTT, A.P.J., SCUDDER, GORSKI, AND SMITH, JJ. Kenney Shelton Liptak Nowak LLP, Buffalo (Nelson E. Schule, Jr., of Counsel), for Defendants-Appellants. Paul William Beltz, P.C., Buffalo (Debra A. Norton of Counsel), for Plaintiff-Respondent.

Plaintiff commenced this action seeking damages for injuries incurred when he tripped over the uneven planking of a scaffold and fell to one knee.   It is undisputed that plaintiff did not fall from the scaffold.   Supreme Court erred in denying that part of defendants' motion for partial summary judgment dismissing plaintiff's Labor Law § 240(1) claim.   Defendants met their initial burden on the motion by establishing that plaintiff was not injured while falling from, or attempting to prevent himself from falling from, the scaffold (cf. Striegel v. Hillcrest Hgts. Dev. Corp., 100 N.Y.2d 974, 768 N.Y.S.2d 727, 800 N.E.2d 1093;  Franklin v. Dormitory Auth. of State of N.Y., 291 A.D.2d 854, 736 N.Y.S.2d 816;  Ray v. Niagara Mohawk Power Corp., 256 A.D.2d 1070, 1071, 682 N.Y.S.2d 758;  Adams v. North-Star Constr. Co., 249 A.D.2d 1001, 672 N.Y.S.2d 166;  Brown v. Niagara Mohawk Power Corp., 188 A.D.2d 1014, 591 N.Y.S.2d 908).   In opposition, plaintiff failed to raise a triable issue of fact.

It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, that part of the motion with respect to the Labor Law § 240(1) claim is granted and that claim is dismissed.

MEMORANDUM: