Alston v. Golub Corp.

• Decision Date: 23 April 1987
• Citation: 514 N.Y.S.2d 553,129 A.D.2d 916
• Parties: John F. ALSTON, Respondent, v. GOLUB CORPORATION, Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 553

514 N.Y.S.2d 553

129 A.D.2d 916

John F. ALSTON, Respondent, v. GOLUB CORPORATION, Appellant, et al., Defendant.

Supreme Court, Appellate Division Third Department.

April 23, 1987.

Carter, Conboy, Bardwell, Case & Blackmore (Susanna L. Fisch, of counsel), Albany, for appellant.

Bond, Schoeneck & King (Carl Rosenbloom, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and WEISS, LEVINE, KANE and YESAWICH, JJ.

LEVINE, Justice.

Appeal from an order of the Supreme Court (Hughes, J.), entered August 25, 1986 in Albany County, which granted plaintiff's motion for partial summary judgment against defendant Golub Corporation.

Plaintiff sustained serious injuries when a scaffold he was standing on toppled over and he fell some 35 to 40 feet to the ground. At the time of the accident plaintiff was employed by Main-Tane Contracting, Inc. and was engaged in painting the ceiling of a building owned by defendant Golub Corporation. Golub had contracted with Main-Tane to paint the building and the scaffold was supplied by defendant Albany Ladder Company, Inc. Plaintiff commenced the instant suit naming Golub and Albany Ladder as defendants, seeking damages for his injuries and alleging various violations by defendants of the Labor Law. Following the joinder of issue, plaintiff successfully moved for partial summary judgment as against Golub on the alleged violation of Labor Law § 240(1).

On appeal Golub contends that Supreme Court erred in granting summary judgment against it since (1) plaintiff did not sustain his burden of establishing a prima facie violation of Labor Law § 240(1), and (2) Golub presented an acceptable excuse for its failure to oppose the motion with evidentiary proof in admissible form of a triable issue of fact, to wit, its lack of opportunity for pretrial discovery.

We are persuaded that plaintiff's moving papers set forth evidentiary facts showing a prima facie violation of Labor Law § 240(1) and thus established, initially, plaintiff's entitlement to summary judgment against Golub. Labor Law § 240(1) mandates that an owner or contractor supply safety devices, including scaffolding, necessary to provide a worker with proper protection and imposes absolute liability for injuries proximately caused by the failure to do so (Bland v. Manocherian, 66 N.Y.2d 452, 459, 497 N.Y.S.2d 880, 488 N.E.2d 810; Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102, 482 N.E.2d 898). Here, plaintiff specifically proved a failure of the safety equipment mandated for his task by Labor Law § 240(1). Thus, the instant case is distinguishable from those of an unexplained fall without proof of the failure of safety equipment or what equipment was required under the circumstances (see, Pastoriza v. State of New York, 108 A.D.2d 605, 484 N.Y.S.2d 832; Parsolano v. County of Nassau, 93 A.D.2d 815, 817, 460 N.Y.S.2d 823). Accordingly, plaintiff's allegations sufficiently established, prima facie, Golub's failure to provide him with proper protection and injuries proximately caused as a result thereof (see, Hauff v. CLXXXII Via Magna Corp., 118 A.D.2d 485, 486, 499 N.Y.S.2d 958; Lorenzo v. Faillace, 132 App.Div. 103, 104, 116 N.Y.S. 326; Cummings v. Kenny, 97 App.Div. 114, 115, 89 N.Y.S. 579).

In opposition to plaintiff's motion, it was incumbent upon Golub to come forward with evidentiary proof in admissible form to establish the existence of a triable issue of fact or to demonstrate an acceptable excuse for its failure to do so (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 560, 427 N.Y.S.2d 595, 404 N.E.2d 718). Golub submitted its attorney's affidavit asserting, inter alia, that it had no information regarding the cause of the accident since it had not yet had an opportunity to depose the...