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

Thomas J. KEEFE, Jr., Plaintiff-Appellant, v. E & D SPECIALTY STANDS, INC., Defendant-Respondent.

E & D Specialty Stands, Inc., Third-Party Plaintiff, v. Ace Stadium Installers, Inc., Third-Party Defendant-Respondent.

Decided: March 31, 1999

PRESENT:  PINE, J.P., WISNER, HURLBUTT, SCUDDER and CALLAHAN, JJ. Jack C. Jacobs, Buffalo, for third-party defendant-respondent. Alan Davis Voos,Collins Collins & Kantor P.C., Buffalo, for plaintiff-appellant. Vincent G. Saccomando, Buffalo.

Supreme Court erred in denying that part of plaintiff's motion for summary judgment pursuant to Labor Law § 240(1) and in granting those parts of defendant's and third-party defendant's cross motions for summary judgment dismissing that claim.   Plaintiff and a co-worker were involved in the construction of bleachers and were carrying 16-foot-long aluminum seatboards from the top of the structure, where they had been deposited by a crane, to a lower level for installation.   Floorboards were in place on the partially constructed bleachers, and some risers were attached.   As the pair descended the bleachers with six seats on their shoulders, plaintiff stepped into an opening between the floorboard and riser where the riser was unattached, and his leg went into the opening up to his thigh.   He then fell backward approximately five or six feet to a lower level of the bleachers, severely cutting his right arm in his attempt to catch himself.

The court erred in determining that the bleachers were comparable to a permanently installed staircase, relying on Monroe v. New York State Elec. & Gas Corp., 186 A.D.2d 1019, 588 N.Y.S.2d 483, and Cliquennoi v. Michaels Group, 178 A.D.2d 839, 577 N.Y.S.2d 550.   The bleachers at most were being used as a temporary stairway, or the functional equivalent of a ladder (see, Wescott v. Shear, 161 A.D.2d 925, 557 N.Y.S.2d 493, appeal dismissed 76 N.Y.2d 846, 560 N.Y.S.2d 131, 559 N.E.2d 1290).   Because the riser was unsecured, the temporary stairway failed to give plaintiff proper protection from falling from an elevated workplace.   So viewed, plaintiff's fall comes within the protection of Labor Law § 240(1) (see, Felker v. Corning, Inc., 90 N.Y.2d 219, 224, 660 N.Y.S.2d 349, 682 N.E.2d 950;  cf., Dombrowski v. Schwartz, 217 A.D.2d 914, 629 N.Y.S.2d 924;  see also, Serino v. Miller Brewing Co. [appeal No. 2], 167 A.D.2d 917, 562 N.Y.S.2d 283, lv. dismissed 78 N.Y.2d 1008, 575 N.Y.S.2d 458, 580 N.E.2d 1061;  Pietsch v. Moog, Inc., 156 A.D.2d 1019, 549 N.Y.S.2d 301).   We therefore reverse the order insofar as appealed from, deny those parts of defendant's and third-party defendant's cross motions with respect to the Labor Law § 240(1) claim and grant that part of plaintiff's motion with respect to that claim.

Order insofar as appealed from unanimously reversed on the law without costs, defendant's cross motion denied in part, third-party defendant's cross motion denied, Labor Law § 240(1) claim reinstated and motion granted in part.