Thomas v. Claffee

750 In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated May 20, 2004, as granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging common-law negligence. Ordered that the order is affirmed insofar as appealed from, with costs to the defendants. The plaintiff, an experienced construction worker, was repairing a leak in the chimney shared by the attached homes owned by the defendants, Audrey Claffee and Hugh C. Henry, and the third-party defendants, Daniel Crawford and Dorrie Crawford. The chimney divided a shared roof between the two homes where the plaintiff was standing while making repairs. After repairing the side of the chimney used by the Crawfords, the plaintiff ventured across the roof to repair the side of the chimney on the defendants’ property. The defendant Audrey Claffee previously had promised to open a window near the defendants’ side of the chimney so that the plaintiff could tie a rope to secure himself to the chimney, as he had done while repairing the side of the chimney on the Crawfords’s property. Upon reaching the window, the plaintiff found that it was closed. He subsequently fell off of the roof, sustaining injuries. The defendants established their prima facie entitlement to judgment as a matter of law. Although the plaintiff argues that a triable issue of fact exists as to whether his injuries were caused as a result of Claffee’s failure to open the window next to the chimney as promised, the plaintiff failed to present evidence as to how this failure proximately caused his injuries, especially in light of the plaintiffs failure to use any safety devices while walking on the sloped roof (see Heard v City of New York, 82 NY2d 66, 72 [1993]). Accordingly, the Supreme Court correctly granted that branch of the motion which was for summary judgment dismissing the cause of action alleging common-law negligence, as the plaintiff failed to raise a triable issue of fact. Krausman, Rivera and Covello, JJ., concur.