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BARKER v. MADISON ASSOCS.

November 11, 1994

FRED BARKER AND GERRI BARKER, Plaintiffs,
v.
MADISON ASSOCIATES, a Limited Partnership, ERNEST F. STEINER, 527 MADISON AVENUE HOLDINGS, INC., d/b/a 527 MADISON AVENUE, a New York Partnership, SWING STAGE, Limited, and MDN PROPERTY CORP., LOUIS DREYFUS PROPERTY GROUP, Defendants.


McKENNA


The opinion of the court was delivered by: LAWRENCE M. MCKENNA

McKENNA, D.J.

 Plaintiff Fred Barker ("Barker") commenced this action against Defendants on May 29, 1992. The Court is now presented with Plaintiff's motion for summary judgment with regard to liability, and Defendants' cross-motion for summary judgment dismissing the Complaint. Plaintiff also seeks to sever the third-party action against National Cleaning Corp. ("National"). For the reasons stated below, Plaintiff's motions are denied, and Defendants' motion is granted.

 I.

 Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only where "there is no genuine issue as to any material fact" and a party is "entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The moving party must demonstrate the absence of any genuine issue of material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). "[A] fact is material when its resolution would 'affect the outcome of the suit under governing law,' and a dispute is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Hetchkop v. Grundolt Carpet Workroom, Inc., 841 F. Supp. 113, 1994 WL 7524 at *2 (S.D.N.Y.) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)); see also Celotex, 477 U.S. at 322-24. Summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex, 477 U.S. at 322. The nonmoving party's "evidence . . . is to be believed, and all justifiable inferences are to be drawn in [its] favor." Eastman Kodak Co. v. Image Technical Servs., 119 L. Ed. 2d 265, 112 S. Ct. 2072, 2077 (1992) (quoting Anderson, 477 U.S. at 255).

 The standard governing the inferences and burden of proof is the same in deciding cross-motions. Straube v. Florida Union Free Sch. Dist., 801 F. Supp. 1164, 1174 (S.D.N.Y. 1992); Eastman Mach. Co. v. United States, 841 F.2d 469, 473-74 (2d Cir. 1988). With these rules in mind, the parties' claims are taken up below.

 II. Facts

 The uncontested facts are as follows. Barker was employed as a window cleaner by Third-Party Defendant National Cleaning Corp. On July 17, 1990, Barker was allegedly injured while cleaning the windows at 527 Madison Avenue. The injury resulted from Barker's attempt to descend from a scaffold provided by Defendant Swing Stage Limited ("Swing Stage"), the general contractor for Defendant 527 Madison Avenue Holdings, Inc. ("Madison"). Barker's claim is grounded in common law negligence and violation of N.Y. Labor Law §§ 202, 240(1) (McKinney 1986).

 At approximately 7:35 a.m. on July 17, Barker and his partner, Robert Bonilla ("Bonilla"), were descending down the side of 527 Madison when one of the motors driving their scaffold failed. (Barker Dep. at 260.) Thirty to forty-five minutes later, (id. at 268), Bonilla exited the scaffold, lowered himself a distance of several feet to the building's seventh floor setback, and entered the building through a window.

 III. Statutory Violation

 Barker seeks recovery pursuant to Labor Law § 240(1), which states, in relevant part:

 
All contractors and owners and their agents who contract for . . . the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect . . . scaffolding, hoists, stays, ladders . . . which shall be constructed, placed and operated as to give proper protection to a person so employed.

 Plaintiff correctly notes that this statute imposes absolute liability, without regard to plaintiff's own negligence, where a violation is the proximate cause of an accident. Zimmer v. Chemung County Performing Arts, Inc., 65 ...


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