Opinion
November 16, 1994
Appeal from the Supreme Court, Onondaga County, Nicholson, J.
Present — Denman, P.J., Green, Balio, Doerr and Boehm, JJ.
Appeal from order insofar as it denied reargument unanimously dismissed (see, Empire Ins. Co. v. Food City, 167 A.D.2d 983, 984) and order modified on the law and as modified affirmed with costs to plaintiffs in accordance with the following Memorandum: Richard G. Kozlowski (plaintiff) fell from a permanent ladder affixed to a cold-mill processor. The IAS Court erred in granting defendant's cross motion for summary judgment on the Labor Law § 240 (1) cause of action. The ladder was a part of the "structure" under Labor Law § 240 (1) (see, Lewis-Moors v Contel of N.Y., 78 N.Y.2d 942, 943; Gordon v. Eastern Ry. Supply, 181 A.D.2d 990, affd 82 N.Y.2d 555; Dedario v. New York Tel. Co., 162 A.D.2d 1001), and plaintiff was engaged in an enumerated activity (see, 12 NYCRR 23-1.4). We disagree with defendant's contention that the ladder simply served as "a permanent passageway from one place of work to another" and could not be considered a tool of plaintiff's work, thus removing this case from the ambit of section 240 (1) (see, Monroe v. New York State Elec. Gas Corp., 186 A.D.2d 1019; Cliquennoi v. Michaels Group, 178 A.D.2d 839; Westcott v. Shear, 161 A.D.2d 925, appeal dismissed 76 N.Y.2d 846). Unlike the situation in Monroe, plaintiff did not use the ladder to gain access from one part of the work site to another, but rather, used it to reach a valve as part of his work on the processor (cf., Mizak v. Carborundum Co., 172 App. Div. 627). For purposes of Labor Law § 240 (1), the ladder is indistinguishable from the metal rung construction of a telephone pole because its presence "presumes that workers will climb to elevated heights" (Dedario v. New York Tel. Co., 162 A.D.2d 1001, 1002-1003, supra; see also, Figueroa v. Manhattanville Coll., 193 A.D.2d 778).
Plaintiffs are not entitled to summary judgment, however, on the Labor Law § 240 (1) cause of action because there is a question of fact whether plaintiff's injuries were proximately caused by the fall. In opposition to plaintiffs' motion for summary judgment, defendant submitted the affidavit of a medical doctor who concluded that plaintiff's "symptoms of degenerative disc disease present immediately after the alleged incident were due to a pre-existing disease and not trauma." That expert opinion creates a question of fact on a material issue and thus precludes summary judgment. We reject plaintiffs' contention that the affidavit submitted by defendant's expert should not be considered because defendant failed to disclose the expert's identity in a reasonable time pursuant to CPLR 3101 (d) (1) (i). Plaintiffs' remedy for failure to comply with that section is to move before the IAS Court for "whatever order may be just" (CPLR 3101 [d] [1] [i]).