Andrews v. Ryan Homes, Inc.

Appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered December 10, 2004 in a [1198] personal injury action. The order granted plaintiffs motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1). It is hereby ordered that the order so appealed from be and the same hereby is reversed on the law without costs and the motion is denied. Memorandum: We agree with defendant that Supreme Court erred in granting plaintiffs motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1). It is undisputed that plaintiff, an employee of Suzanne Bobbitt, doing business as Q’s Cleaning, was injured when she fell from a ladder while cleaning a newly constructed house. We conclude that plaintiff met her initial burden on the motion by establishing that Bobbitt placed a ladder near a window that was to be cleaned and that plaintiff was injured when she climbed the ladder and it slid out from under her (see Alligood v Hospitality W., LLC, 8 AD3d 1102 [2004]; Boncore v Temple Beth Zion, 299 AD2d 953 [2002]; Evans v Anheuser-Busch, Inc., 277 AD2d 874 [2000]). In opposition to the motion, however, defendant presented evidence establishing that, approximately 30 minutes before the accident, Bobbitt told plaintiff not to climb the ladder as it was positioned and, indeed, that Bobbitt had repeatedly told plaintiff not to use the ladder without someone to steady it. Defendant further presented evidence establishing that Bobbitt and another member of the work crew were present and able to steady the ladder and that the ladder was not defective. Furthermore, plaintiff admits that, seconds before the accident, Bobbitt told her not to climb the ladder but she “didn’t take [Bobbitt] seriously.” We thus conclude that there is an issue of fact whether plaintiff was a recalcitrant worker and, if so, whether her actions were the sole proximate cause of her injuries (see Montgomery v Federal Express Corp., 4 NY3d 805, 806 [2005]; Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]), precluding partial summary judgment on the issue of liability under Labor Law § 240 (1). All concur except Scudder and Gorski, JJ., who dissent and vote to affirm in the following memorandum.