Stoudenmyre v. Charbonneau Roofing, Inc.

• Decision Date: 05 December 1991
• Citation: 178 A.D.2d 745,577 N.Y.S.2d 182
• Parties: William STOUDENMYRE et al., Respondents, v. CHARBONNEAU ROOFING, INC., Appellant. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

Page 182

577 N.Y.S.2d 182

178 A.D.2d 745

William STOUDENMYRE et al., Respondents, v. CHARBONNEAU ROOFING, INC., Appellant (And a Third-Party Action.)

Supreme Court, Appellate Division Third Department.

Dec. 5, 1991.

Friedman, Hirschen, Miller, Coughlin & Campito, P.C. (Margaret C. Tabak, of counsel), Schenectady, for appellant.

Dreyer, Boyajian & Tuttle (James B. Tuttle, of counsel), Albany, for respondents.

Before CASEY, J.P., and MIKOLL, YESAWICH, LEVINE and CREW, JJ.

LEVINE, Justice.

Appeal from that part of an order of the Supreme Court (Viscardi, J.), entered March 26, 1991 in Saratoga County, which denied defendant's motion for summary judgment dismissing the second cause of action of the complaint.

This action was commenced to recover for injuries sustained by plaintiff William Stoudenmyre (hereinafter plaintiff) when he fell approximately 20 feet onto a paved parking lot from a ladder owned by defendant. At the time of the incident in October 1989, plaintiff was an officer and general manager of third-party defendant D & D Automotive/Industrial Supply, Inc. (hereinafter D & D). Upon plaintiff's request, Peter Charbonneau, a representative from defendant, went to D & D for the purpose of preparing a roof repair estimate. While Charbonneau was on the roof performing the estimate, plaintiff climbed the ladder set up by Charbonneau and went onto the roof. Although there are conflicting accounts as to what transpired while plaintiff was on the roof, it is undisputed that plaintiff and Charbonneau spoke briefly and that plaintiff fell as he started to climb down the ladder, sustaining serious injuries.

Following discovery, defendant moved for summary judgment dismissing the complaint. Supreme Court granted the motion to the extent that it dismissed plaintiff's cause of action under Labor Law § 240, but denied the motion with respect to plaintiff's negligence cause of action. This appeal by defendant followed.

We affirm. A review of the parties' submissions on the motion indicates that, at the very least, factual questions remained with regard to whether defendant's allegedly negligent acts and/or omissions were the cause of plaintiff's injuries and the extent, if any, to which plaintiff assumed the risk. Specifically, plaintiff submitted an expert report from an engineer who indicated that the positioning of the ladder, as described by Charbonneau, was at an angle far less than the 75 degrees required for safe use. Plaintiff also...