Cook v. Presbyterian Homes of Western New York, Inc.

• Decision Date: 30 December 1996
• Citation: 234 A.D.2d 906,655 N.Y.S.2d 701
• Parties: Lee H. COOK and Anne Marie Cook, Respondents, v. PRESBYTERIAN HOMES OF WESTERN NEW YORK, INC., and Presbyterian Village of North Church, Appellants. PRESBYTERIAN HOMES OF WESTERN NEW YORK, INC., and Presbyterian Village of North Church, Third-Party Plaintiffs, v. ABD LIGHTING MANAGEMENT COMPANY, INC., Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 701

655 N.Y.S.2d 701

234 A.D.2d 906

Lee H. COOK and Anne Marie Cook, Respondents, v. PRESBYTERIAN HOMES OF WESTERN NEW YORK, INC., and Presbyterian Village of North Church, Appellants.

PRESBYTERIAN HOMES OF WESTERN NEW YORK, INC., and Presbyterian Village of North Church, Third-Party Plaintiffs, v. ABD LIGHTING MANAGEMENT COMPANY, INC., Third-Party

Defendant-Appellant.

Supreme Court, Appellate Division Fourth Department.

Dec. 30, 1996.

Thomas Segalle, Saperston & Day, P.C., and Thomas Cunningham, Hurwitz & Fine, P.C., Buffalo, for Appellants.

Edward Smith, Steiner & Blotnik, Buffalo, for Respondents.

Before GREEN, J.P., and PINE, CALLAHAN, DOERR and DAVIS, JJ.

MEMORANDUM.

Supreme Court erred in granting plaintiffs' motion for partial summary judgment on the Labor Law § 240(1) cause of action. Lee H. Cook (plaintiff), an electrical technician, injured his back while working on a ladder to repair a light in defendants' parking lot. Plaintiff testified at his deposition that, while carrying a 20-pound light fixture over his shoulder, his left foot slipped from one rung of the ladder to another, thereby causing injury to his back. In opposition to the motion, plaintiff's employer, third-party defendant, ABD Lighting Management Company, Inc. (ABD), submitted two previous statements signed by plaintiff in which he did not mention that his foot had slipped. Instead, plaintiff stated that he twisted his back when he caught the light fixture after it had slipped off his shoulder. Thus, although plaintiffs met their initial burden, ABD raised a triable issue of fact by submitting plaintiff's prior inconsistent versions of the incident (see, Wilson v. Haagen-Dazs Co., 215 A.D.2d 338, 627 N.Y.S.2d 41, lv. dismissed 86 N.Y.2d 838, 634 N.Y.S.2d 446, 658 N.E.2d 224; Colazo v. Tower 45 Assocs., 209 A.D.2d 339, 619 N.Y.S.2d 547). Contrary to plaintiffs' contention, the inconsistencies are neither minor nor immaterial (see, Muhammad v. Hyman Constr., 216 A.D.2d 206, 628 N.Y.S.2d 681); if plaintiff did not slip on the ladder, he was not a falling worker in the context of Labor Law § 240(1).

ABD further contends that the Labor Law § 240(1) cause of action should be dismissed because plaintiff was not engaged in a protected activity when injured. We disagree. Plaintiff and a co-worker removed a defective fixture from defendants' light pole, attached a new transformer to the fixture and then attempted to reinstall it on the light pole, which was 25 to 27 feet in height. Two workers were assigned to the task and neither was able to accomplish it. In our view, plaintiff was repairing and altering the light pole, thereby bringing him within the coverage of section 240(1) (see, Fuller v. Niagara...