FICHTER v. SMITH 716

Reset A A Font size: Print

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

Kevin FICHTER and Nancy Fichter, Plaintiffs-Appellants, v. Lynn H. SMITH, Sidney Devorsetz, Francis D. Stinziano, Anthony S. Oliva and Stephen A. Oliva, Individually and d/b/a a General Partnership under the Assumed Name of 716 James Street Partnership, Defendants-Respondents.

Lynn H. Smith, Sidney Devorsetz, Francis D. Stinziano, Anthony S. Oliva and Stephen A. Oliva, Individually and d/b/a a General Partnership under the Assumed Name of 716 James Street Partnership, Third-Party Plaintiffs-Respondents-Appellants, v. Diamond Roofing, Inc., Third-Party Defendant-Respondent-Appellant.

Decided: March 31, 1999

Present:  PINE, J.P., HAYES, WISNER, PIGOTT, JR., and HURLBUTT, JJ. Michaels & Smolak, P.C., Auburn (Michael Gleason Bersani, of counsel), for plaintiffs-appellants. Kimberly Ann Jordan, Saperston & Day, P.C., Syracuse (David Leach, of counsel), for defendants-respondents and third-party plaintiffs-respondents-appellants. John D. Allen, Bond Schoeneck & King, Syracuse (Henry Morris, of counsel), for third-party defendant-respondent-appellant.

 Kevin Fichter (plaintiff) fractured both heels when a ladder that he was climbing to reach the roof of a commercial building owned by defendants was blown over by a strong gust of wind.   Plaintiff had tied off the bottom of the ladder and was carrying a rope with which to tie off the top of the ladder when the accident occurred.   Contrary to the contention of defendants and third-party defendant, plaintiff was engaged in an activity within the purview of Labor Law § 240(1), the repair of a roof, when the accident occurred.   Supreme Court erred in denying plaintiffs' motion for partial summary judgment on the issue of liability on that claim.   Contrary to the court's conclusion, there are no issues of fact on the recalcitrant worker defense.   Plaintiff was provided with no safety devices to guard against the type of accident that occurred, and, although plaintiff admitted that it was his company's policy to tie off ladders, plaintiff was in the process of tying off the ladder when this accident occurred.   In any event, the fact that plaintiff may have received general safety instructions that were not followed is not sufficient to raise an issue of fact whether plaintiff was a recalcitrant worker (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 562-563, 606 N.Y.S.2d 127, 626 N.E.2d 912;  Tennant v. Curcio, 237 A.D.2d 733, 734, 655 N.Y.S.2d 118;  Savigny v. Marrano/Marc Equity Corp., 221 A.D.2d 942, 634 N.Y.S.2d 592).

 The court further erred in denying the cross motion of third-party defendant for summary judgment dismissing the third-party complaint.   Defendants failed to present competent medical evidence that plaintiff sustained a grave injury (see, Workers' Compensation Law § 11).   We have examined the remaining contentions of defendants and conclude that they lack merit.

We modify the order, therefore, by granting plaintiffs' motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240(1) and granting third-party defendant's cross motion and dismissing the third-party complaint.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: