Garbacki v. K. Hovnani At 80 Northern Westchester, Inc.

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered February 11, 1997, which denied their motion for partial summary judgment on the issue of liability under Labor Law § 240 (1). Ordered that the order is affirmed, with costs. The injured plaintiff Bogdan Garbacki, an employee of the third-party defendant Zenon Wcodarczyk doing business as Zeke’s Siding, was injured in the course of his employment when he fell from a scaffold while working at premises owned by the defendant K. Hovnani at 80 Northern Westchester, Inc. Although the plaintiff alleged that he fell when the scaffold suddenly moved without warning, his employer stated in an affidavit that he had personally inspected the scaffold both on the day of the accident and four days thereafter, and that at both times he found the scaffold to be properly erected and attached to the building. Under these circumstances, the issue of whether the device provided proper protection within the meaning of Labor Law § 240 (1) is a question of fact for the jury (see, Basmas v J.B.J. Energy Corp., 232 AD2d 594; Romano v Hotel Carlyle Owners Corp., 226 AD2d 441; see also, Nowacki v Metropolitan Life Ins. Co., 242 AD2d 265). Pizzuto, J. P., Santucci, Joy and Friedmann, JJ., concur.