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JOBLON v. SOLOW & AVON PRODS.

October 8, 1998

RICHARD JOBLON and MAGDALENA JOBLON, Plaintiffs, against SHELDON H. SOLOW and AVON PRODUCTS, INC., Defendant. SHELDON H. SOLOW, Third-Party Plaintiff, - against - GELLERE ELECTRIC CONSTRUCTION & MAINTENANCE, INC., Third-Party Defendant.


The opinion of the court was delivered by: SWEET

Sweet, D.J.

 The plaintiffs Richard Joblon and Magdalena Joblon (the "Joblons"), third-party defendant Geller Electric Construction & Maintenance, Inc. ("Geller") and defendant Avon Products, Inc. ("Avon"), have all moved for summary judgment. For the reasons set forth below, all motions are denied and the action placed upon the ready trial calendar.

 Prior Proceedings

 Richard Joblon, an electrician, fell from a ladder on January 30, 1992, and that fall has resulted in extensive litigation, starting with the filing of this action on February 1, 1994, the rendering of opinions with respect to motions for summary judgment and other matters on February 13, 1996, April 3, 1996, November 22, 1996 and April 2, 1997, respectively. Joblon v. Solow, 914 F. Supp. 1044 (S.D.N.Y. 1996); 921 F. Supp. 218 (S.D.N.Y. 1996); 945 F. Supp. 734 (S.D.N.Y. 1997); 1997 U.S. Dist. LEXIS 4120, 1997 WL 158357 (S.D.N.Y. 1997). From April 1 to April 3, 1997, a jury trial was held on the remaining issues and a judgment in favor of Avon was entered on April 7, 1997.

 The Joblons appealed both the jury verdict and the prior grants of summary judgment to the defendants striking the claims of the Joblons based upon New York Labor Law §§ 2401(1) and 241(6). In its opinion of January 28, 1998, Joblon v. Solow, 135 F.3d 261 (2d Cir. 1998), the Court of Appeals certified the question of the applicability of those statutes to the New York Court of Appeals which determined in its opinion of April 30, 1998, that the sections were applicable. Joblon v. Solow, 91 N.Y.2d 457, 672 N.Y.S.2d 286, 695 N.E.2d 237 (N.Y. 1998) slip op. 04261.

 After receiving letter briefs from the parties, by opinion of June 29, 1998, the Court of Appeals remanded the action to this court to determine whether summary judgment in favor of the Joblons is appropriate, whether the Joblons have waived their claim under § 241(6), and all other open issues, except, of course, the applicability of §§ 240 and 241(6) as determined by the New York Court of Appeals. Familiarity with all the prior opinions is assumed.

 The Joblons moved for summary judgment on July 24, 1998. Defendants Geller and Avon moved for summary judgment on August 26, 1998. Opposition and reply papers were received through September 2, 1998, at which time the motions were considered fully submitted.

 The Facts

 Joblon fell off a ladder while installing an electric wall clock, a task which required chopping a hole through a block wall and running a conduit pipe and wire. Sheldon H. Solow ("Solow") owned the building, Avon leased the premises. Geller provided services to Avon, and Joblon was Geller's employee. As our Court of Appeals stated:

 
The room Joblon was working in was arguably too small for him to lock open his A-frame ladder, and Joblon subsequently fell and sustained substantial injuries.

 Joblon v. Solow, 135 F.3d at 263 (2d Cir. 1998).

 Discussion

 "Summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 'As a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party.' However, where the nonmoving party will bear the burden of proof at trial, Rule 56 permits the moving party to point to an absence of evidence to support an essential element of the nonmoving party's claim." Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991) (citations omitted).

 As is often stated, "viewing the evidence produced in the light most favorable to the nonmovant, if a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. Long Island Lighting ...


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