Bernardo v. Melville Indus. Associates

Decision Date13 March 1989
Citation538 N.Y.S.2d 833,148 A.D.2d 486
PartiesStephen J. BERNARDO, et al., Appellants, v. MELVILLE INDUSTRIAL ASSOCIATES, Respondent.
CourtNew York Supreme Court — Appellate Division

Campbell & Miller, Smithtown (Edwin Miller, of counsel), for appellants.

Devitt & Spellman, Smithtown (Vincent A. Malito, of counsel), for respondent.

Before MANGANO, J.P., and BRACKEN, SPATT and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., based, inter alia, on a violation of Labor Law § 240(1), the plaintiffs appeal, as limited by their notice of appeal and brief, from so much of an order of the Supreme Court, Suffolk County (Lama, J.), entered March 22, 1988, as denied those branches of their motion which were for partial summary judgment on the issue of liability under Labor Law § 240(1) and on the affirmative defense of the Workers' Compensation Law.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiffs' motion which were for partial summary judgment on the issue of liability pursuant to Labor Law § 240(1) and for dismissal of the second affirmative defense of the Workers' Compensation Law asserted in the defendant's answer are granted.

The plaintiff, Stephen J. Bernardo, was injured on March 10, 1986, when he allegedly fell from a defective ladder supplied to him by the defendant Melville Industrial Associates (hereinafter Melville), a co-partnership, while he was doing work on property owned by Melville. The plaintiffs commenced the instant action against Melville to recover for personal injuries suffered in the fall, based, inter alia, on an alleged violation of Labor Law § 240(1). Labor Law § 240(1) mandates that an owner supply safety devices, including ladders, necessary to provide a worker with proper protection, and imposes absolute liability for injuries proximately caused by the failure to do so (Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102, 482 N.E.2d 898).

Contrary to the determination of the Supreme Court, the plaintiffs' moving papers, including the affidavit of Jeanne Gurriell, a disinterested witness, "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 Melville (Alston v. Golub Corp., 129 A.D.2d 916, 917, 514 N.Y.S.2d 533). In opposition to the plaintiffs'...

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    ...420 So.2d 587, 589-90 (Fla.1982); Searcy v. Paul, 20 Mass.App.Ct. 134, 478 N.E.2d 1275, 1279 (1985); Bernardo v. Melville Indus. Assocs., 148 A.D.2d 486, 538 N.Y.S.2d 833, 834-35 (1989); Buchner v. Pines Hotel, Inc., 87 A.D.2d 691, 448 N.Y.S.2d 870, 871-72 (1982), aff'd, 58 N.Y.2d 1019, 462......
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    ...Corp., 211 A.D.2d 742, 622 N.Y.S.2d 105; Kaplan v. Bayley Seton Hosp., 201 A.D.2d 461, 607 N.Y.S.2d 425; Bernardo v. Melville Indus. Assocs., 148 A.D.2d 486, 538 N.Y.S.2d 833; Bruno v. Dynamic Enters., 132 A.D.2d 964, 518 N.Y.S.2d 494; but see, Di Rie v. Automotive Realty Corp., 199 A.D.2d ......
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