Opinion
December 30, 1992
Appeal from the Supreme Court, Chautauqua County, Gerace, J.
Present — Callahan, J.P., Boomer, Green, Lawton and Boehm, JJ.
Order unanimously affirmed with costs. Memorandum: While working in a boiler at the Niagara Mohawk Steam Station in Dunkirk, plaintiff Kevin Brown was injured when descending a ladder from the third to the second tier of scaffolding. The record shows that, as plaintiff swung his legs onto the second tier, the toe plate of the scaffolding came loose, he lost his balance and fell. Plaintiff saved himself from falling to the ground, a distance of 16 to 20 feet, by grabbing the ladder one or two rungs below, causing him to injure his back. Supreme Court properly held that Labor Law § 240 (1) applies (see, Aruck v Xerox Corp., 144 Misc.2d 367, 372, affd 166 A.D.2d 907; see also, Pietsch v Moog, Inc., 156 A.D.2d 1019).