Gandley v. Prestige Roofing & Siding Co., Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before LAWRENCE
• Citation: Gandley v. Prestige Roofing & Siding Co., Inc., 539 N.Y.S.2d 416, 148 A.D.2d 666 (N.Y. App. Div. 1989)
• Decision Date: 27 March 1989
• Parties: Dennis GANDLEY, Appellant, v. PRESTIGE ROOFING & SIDING CO., INC., et al., Respondents (and two third party actions)

Page 416

539 N.Y.S.2d 416

148 A.D.2d 666

Dennis GANDLEY, Appellant, v. PRESTIGE ROOFING & SIDING CO., INC., et al., Respondents (and two third party actions)

Supreme Court, Appellate Division Second Department.

March 27, 1989.

Robert R. Felton, P.C., Mineola, for appellant.

Pizzitola & Inzerillo, Commack (John B. Zollo, of counsel), for respondent Prestige Roofing & Siding Co., Inc.

Before LAWRENCE, J.P., and SPATT, SULLIVAN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from (1) so much of an order of the Supreme Court, Suffolk County (Jones, J.), entered February 8, 1988, as denied that branch of his motion which was for partial summary judgment on the issue of liability based upon a violation of Labor Law § 240(1); and (2) so much of an order of the same court, entered May 16, 1988, as, upon granting renewal, adhered to so much of its original determination as denied that branch of his motion which was for partial summary judgment on the issue of liability based upon a violation of Labor Law § 240(1).

ORDERED that the appeal from the order entered February 8, 1988, is dismissed, as that order was superseded by the order entered May 16, 1988, made upon renewal; and it is further,

ORDERED that the order entered May 16, 1988, is reversed insofar as appealed from, on the law, so much of the order entered February 8, 1988, as denied that branch of the plaintiff's motion which was for partial summary judgment on the issue of liability based upon a violation of Labor Law § 240(1) is vacated and that branch of the plaintiff's motion is granted; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

The plaintiff was an employee of the third-party defendant Thermotest, Inc. The defendant Prestige Roofing & Siding Co. (hereinafter Prestige) was a contractor employed to perform roofing work on a two-story building owned by the defendant South Huntington Union Free School District. The roof in question contained about 8 plexiglas bubbles, which covered skylights, measuring 4 x 6 feet. The plaintiff alleged that on July 25, 1984, while he was properly on the roof, he fell through a bubbled skylight and struck the floor 30 feet below, thereby sustaining serious personal injuries. Further, the plaintiff submitted an affidavit from his physician indicating that as a result of his head injuries, he suffers from retrograde amnesia, and consequently, cannot recall the actual incident. The parties agree that there are no known eyewitnesses to the fall. Nevertheless, it is undisputed that the plaintiff sustained his injuries as a result of falling through the bubbled skylight. In addition, the plaintiff submitted evidentiary proof that 12 days prior to his accident, a worker employed by Prestige had also fallen through a bubbled skylight, approximately ten feet away from the one through which the plaintiff fell. It was therefore contended that the defendants, who were aware of this prior accident, ignored the actual risk presented by the unprotected skylight bubbles, and instead permitted the roof work to continue without any safety devices.

It is well settled that Labor Law § 240(1) "imposes absolute liability upon an owner or contractor for failing to provide or erect safety devices necessary to give proper protection to a worker who sustains injuries proximately caused by that failure" (Bland v. Manocherian, 66 N.Y.2d 452, 459, 497 N.Y.S.2d 880, 488 N.E.2d 810; see, Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 520-521, 493 N.Y.S.2d 102, 482 N.E.2d 898, rearg. denied, 65 N.Y.2d 1054, 494 N.Y.S.2d 1033, 484 N.E.2d 1055). Further,...