WILLIAM BELTZ, P.C., BUFFALO (ANNE B. RIMMLER OF COUNSEL),
GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (ROBERT E. SCOTT
OF COUNSEL), FOR DEFENDANT-RESPONDENT SYNERGY TOOLING
SYSTEMS, INC. AND THIRD-PARTY PLAINTIFF.
GOLDBERG SEGALLA LLP, BUFFALO (DANIEL T. HUNTER OF COUNSEL),
FOR DEFENDANT-RESPONDENT C.V.M. ELECTRIC, INC.
PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND SCUDDER,
from an order of the Supreme Court, Erie County (Patrick H.
NeMoyer, J.), entered December 23, 2015. The order, among
other things, granted the motion of defendant-third-party
plaintiff for partial summary judgment dismissing the Labor
Law § 240 (1) claim and denied plaintiff's cross
motion for partial summary judgment on liability on that
claim against defendant-third-party plaintiff.
hereby ORDERED that the order so appealed from is unanimously
modified on the law by denying the motion and reinstating the
Labor Law § 240 (1) claim against defendant-third-party
plaintiff Synergy Tooling Systems, Inc. and as modified the
order is affirmed without costs.
Plaintiff commenced this action seeking damages for injuries
he sustained when he fell while wearing stilts in order to
install ceiling tile. We explained in a prior appeal that
plaintiff fell when he stepped on a flexible electrical wire
conduit that was on the floor (Piche v Synergy Tooling
Sys., Inc., 134 A.D.3d 1439, 1440).
Defendant-third-party plaintiff Synergy Tooling Systems, Inc.
(defendant) moved for partial summary judgment dismissing the
Labor Law § 240 (1) claim against it, and plaintiff
cross-moved for partial summary judgment on liability on that
claim against defendant. Although we reject plaintiff's
contention that Supreme Court erred in denying his cross
motion, we agree with plaintiff that the court erred in
granting defendant's motion. We therefore modify the
assuming, arguendo, that defendant established its
entitlement to judgment on the theory that plaintiff's
fall was caused solely by stepping on the conduit, i.e., a
"separate hazard wholly unrelated to the risk which
brought about the need for the safety device in the first
place" (Cohen v Memorial Sloan-Kettering Cancer
Ctr., 11 N.Y.3d 823, 825; see Nicometi v Vineyards
of Fredonia, LLC, 25 N.Y.3d 90, 101, rearg
denied 25 N.Y.3d 1195), we nevertheless conclude that
plaintiff raised an issue of fact sufficient to defeat the
motion (see generally Zuckerman v City of New York,
49 N.Y.2d 557, 562). In his affidavit submitted in opposition
to defendant's motion, plaintiff clarified his deposition
testimony with respect to why and how he fell (see Cox v
McCormick Farms, Inc., 144 A.D.3d 1533, 1534). Plaintiff
was installing the last of eight ceiling tiles in a room. He
explained in his deposition and in his affidavit that his
work was obstructed by electrical wiring and conduit in the
ceiling that had not been properly secured, thereby leaving
limited space in which to install the tile, which measured
two feet by four feet. With his arms fully extended overhead
while attempting to move and secure the electrical wiring and
conduit, he lost his balance and was forced to step
backwards, at which point his right stilt came into contact
with the conduit and he fell. Thus, plaintiff raised an issue
of fact whether his "injuries were the direct
consequence of a failure to provide adequate protection
against a risk arising from a physically significant height
differential" while he was attempting to secure the
electrical wiring and conduit in the ceiling in order to
install the ceiling tile (Runner v New York Stock Exch.,
Inc., 13 N.Y.3d 599, 603), and were not solely caused by
the presence of the conduit on the floor (cf.
Nicometi, 25 N.Y.3d at 101; Melber v 6333 Main
St., 91 N.Y.2d 759, 763-764; McNabb v Oot Bros.,
Inc., 64 A.D.3d 1237, 1238-1239).
respect to plaintiff's cross motion, we conclude that he
failed to establish his entitlement to judgment as a matter
of law inasmuch as his submissions failed to eliminate any
issues of fact with respect to whether his injuries were
caused solely by the presence of the conduit on the ...