STATE OF NEW YORK

SUPREME COURT : COUNTY OF CHAUTAUQUA


 

TRACY D. TECULVER,


Plaintiff,


-vs- Index #H-05577


BARAN DEVELOPMENT CO., INC.,

AND WILLOWTREE POINT DEVELOPMENT CO., INC.


Defendants.


---------------------------

BARAN DEVELOPMENT CO., INC.,

AND WILLOWTREE POINT DEVELOPMENT CO., INC.,


Third Party Plaintiff,


-vs-

LANCE M. KINAL AND BRYAN EMORY

INDIVIDUALLY AND D/B/A EMORY &

KINAL BUILDING CONTRACTORS,


Third Party Defendants.


 



FESSENDEN, LAUMER & DEANGELO

(J. Kevin Laumer, Esq. of

Counsel) for Plaintiff)


QUACKENBUSH, CESSARIO & HAMLIN

(John J. Quackenbush, Jr., Esq.

of Counsel) for Defendant


QUINN, MCGARRY & CAFFERY, P.C.

(David C. Quinn, Esq. of

Counsel) for Defendant


LUSTIG & BROWN

(James J. Duggan, Esq. of

Counsel) for Fourth Party

Defendant



 


DECISION AND ORDER


GERACE, J.


Plaintiff, injured when he fell off a roof while working for third party defendants, moves for partial summary judgment. Defendants oppose, claiming he was a recalcitrant worker for disobeying instructions of his employer. They also claim he deliberately orchestrated his slip and fall.


Plaintiff says he had carried roofing materials from the roof of building 19 to the adjoining roof of building 18, when felt roofing paper under his feet tore causing him to slip and then slide down the roof, dislodge a kick board at the base of the roof, bounce off a lower roof and hit the ground below.


There was scaffolding on building 19, but none on 18. The only device on 18 was the 2 by 4 kick board apparently placed to prevent one from sliding off the roof.


Defendants say plaintiff was working on building 19 where he was protected by scaffolding and crawling boards, and that he had no business going over to the roof on building 18. They alleged he and other workers had been ordered off the roof because it had started to rain, but, instead of obeying, plaintiff went over to the adjoining roof on 18 where no one was engaged in work; that plaintiff had no reason whatsoever to leave building 19 which had protection to go over to building 18 which did not, because work on 19 was not completed.


The work plan called for completing the roof of a building and then moving the scaffolding to the next building to undertake the roofing work there.


Defendants rely heavily on statements allegedly made by plaintiff to one Merla Cole a few days before his fall that he could fall the right way off the roof without being badly injured, collect a large settlement and not have to work any more.


Defendants say: "Whether this was part of the plaintiff's fall 'the right way' from the roof and whether this fall and the plaintiff's actions, were all orchestrated to make it appear that this was an accident, present some of the many questions of fact for a jury to determine." Memo of Law by Third Party Defendant.


Buildings 18 and 19 are joined, the roof peak of 19 is at a higher elevation than 18, but they are aligned in the same

direction.


Plaintiff has demonstrated that defendants breached their

nondelegable duty imposed by the statute, and, that breach was a proximate cause of his injuries. ADAMS V. CIMATO BROTHERS., INC. V BIG G ROOFING, 617 NYS2d 251, (A.D. 4th Dept) is controlling here. (Defendants claimed plaintiff twice disobeyed instructions to return to the peak of the roof and remain there until the scaffolding was put in place).


Defendants acknowledge that building 18 did not have adequate scaffolding. As those buildings are in effect one building with split level roofs, the statute contemplates that workers be given adequate protection by scaffolding.


If it was not for the recalcitrant worker and orchestrated

fall defenses interposed here, defendants would have to concede, if they have not, that under the facts surrounding this slip and fall, plaintiff would be entitled to summary judgment for lack of a adequate scaffolding on building 18.


This was a witnessed fall. There was no scaffolding in the area of the fall. The question here is whether plaintiff's loose lip (assuming statements were made as alleged by Ms. Cole) should excuse defendants' loose kick board and no scaffolding.


The answer is "no". Their responsibility cannot be delegated. The breach was a proximate cause of plaintiff's fall.


The plaintiff is entitled to partial summary judgment on the issue of liability.


THIS IS THE DECISION AND ORDER OF THIS COURT. NO FURTHER ORDER SHALL BE NECESSARY.


Dated: July 31, 1995

Mayville, New York


 

JOSEPH GERACE

Justice of Supreme Court