BURKE v. APV CREPACO INC

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

Nelson BURKE and Edith Burke, Plaintiffs-Appellants, v. APV CREPACO, INC., and The Uniland Partnership of Delaware, L.P., Doing Business as Uniland Development Company, Defendants-Respondents.

APV Crepaco, Inc., et al., Third-Party Plaintiffs, v. Twinco, Inc., Third-Party Defendant-Respondent.

Decided: December 31, 2003

PRESENT:  PIGOTT, JR., P.J., PINE, HURLBUTT, KEHOE, AND HAYES, JJ. Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiffs-Appellants. Law Office of Roy A. Mura, Buffalo (Susan H. Sadinsky of Counsel), for Defendants-Respondents. Sugarman Law Firm, LLP, Buffalo (James E. Hanlon of Counsel), for Third-Party Defendant-Respondent.

Plaintiffs commenced this action to recover damages for injuries sustained by Nelson Burke (plaintiff) while he was installing an exhaust fan.   Plaintiff fell when the unsecured ladder from which he was working tipped over.   Supreme Court erred in denying plaintiffs' motion for partial summary judgment on the issue of liability under Labor Law § 240(1).   Plaintiffs established that the ladder was too short and that it was unstable and “shook” when not being held.   Plaintiffs thereby met their initial burden by establishing as a matter of law that the ladder failed to provide adequate protection for plaintiff and thus that defendants breached their duty pursuant to Labor Law § 240(1) (see Klein v. City of New York, 89 N.Y.2d 833, 834-835, 652 N.Y.S.2d 723, 675 N.E.2d 458;  Petit v. Board of Educ. of W. Genesee School Dist., 307 A.D.2d 749, 762 N.Y.S.2d 557;  Dahl v. Armor Bldg. Supply, 280 A.D.2d 970, 971, 720 N.Y.S.2d 880).   Defendants failed to raise a triable issue of fact whether the actions of plaintiff were the sole proximate cause of his injuries (see Dahl, 280 A.D.2d at 971, 720 N.Y.S.2d 880;  cf.   Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 960, 672 N.Y.S.2d 840, 695 N.E.2d 709, rearg. denied 92 N.Y.2d 875, 677 N.Y.S.2d 777, 700 N.E.2d 317).   Because plaintiff's fall was caused by the inadequacy of the equipment and not plaintiff's conduct alone, that conduct cannot be found to be the sole proximate cause of plaintiff's injuries.

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

MEMORANDUM: