Opinion
2014-02-19
Thomas DEGEN, et al., appellants, v. UNIONDALE UNION FREE SCHOOL DISTRICT, defendant third-party plaintiff-respondent, Conor Construction Consultant, Inc., et al., defendants-respondents; Herrick's Mechanical Corporation, third-party defendant-respondent.
Grey & Grey, LLP, Farmingdale, N.Y. (Steven D. Rhoads of counsel), for appellants. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Gregory A. Cascino of counsel), for defendant third-party plaintiff-respondent.
Grey & Grey, LLP, Farmingdale, N.Y. (Steven D. Rhoads of counsel), for appellants. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Gregory A. Cascino of counsel), for defendant third-party plaintiff-respondent.
Andrea G. Sawyers, Melville, N.Y. (David R. Holland of counsel), for defendants-respondents Irwin Contracting of Long Island, Inc., and Irwin Contracting, Inc.
Churbuck Calabria Jones & Materazo, P.C., Hicksville, N.Y. (George Jones and Nicholas P. Calabria of counsel), for third-party defendant-respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (K. Murphy, J.), dated February 3, 2012, as denied their motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant Uniondale Union Free School District, without prejudice to renewal upon the completion of discovery.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
In order to establish liability under Labor Law § 240(1), there must be a violation of the statute, and the violation must be a proximate cause of the plaintiff's injury ( see Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39, 790 N.Y.S.2d 74, 823 N.E.2d 439;Hugo v. Sarantakos, 108 A.D.3d 744, 745, 970 N.Y.S.2d 245). However, not every fall from a ladder establishes that the ladder did not provide proper protection ( see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 288–289, 771 N.Y.S.2d 484, 803 N.E.2d 757;Esteves–Rivas v. W2001Z/15CPW Realty, LLC, 104 A.D.3d 802, 803, 961 N.Y.S.2d 497).
Here, the plaintiffs' own submissions demonstrated the existence of triable issues of fact, inter alia, as to how the injured plaintiff's accident occurred, including whether he fell because he merely lost his balance ( see Robinson v. Goldman Sachs Headquarters, LLC, 95 A.D.3d 1096, 1097–1098, 944 N.Y.S.2d 630;Ellerbe v. Port Auth. of N.Y. & N.J., 91 A.D.3d 441, 442, 936 N.Y.S.2d 39;Chin–Sue v. City of New York, 83 A.D.3d 643, 644, 919 N.Y.S.2d 870). In any event, the defendants and the third-party defendant demonstrated that the plaintiffs' motion was premature, as further discovery may lead to relevant evidence ( seeCPLR 3212[f]; Juseinoski v. New York Hosp. Med. Ctr. of Queens, 29 A.D.3d 636, 637, 815 N.Y.S.2d 183).
Accordingly, the Supreme Court properly denied the plaintiffs' motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant Uniondale Union Free School District, without prejudice to renewal upon the completion of discovery. SKELOS, J.P., DICKERSON, CHAMBERS and MILLER, JJ., concur.