Zeitner v. Herbmax Sharon Associates
| Decision Date | 15 June 1993 |
| Citation | 599 N.Y.S.2d 234,194 A.D.2d 414 |
| Parties | Francis ZEITNER, Plaintiff-Appellant-Respondent, v. HERBMAX SHARON ASSOCIATES, et al., Defendants-Respondents-Appellants. . |
| Court | New York Supreme Court — Appellate Division |
Before CARRO, J.P., and ELLERIN, WALLACH, KUPFERMAN and ROSS, JJ.
MEMORANDUM BY THE COURT.
Order, Supreme Court, Bronx County (Howard Silver, J.), entered March 11, 1993, which denied the parties' motion and cross motion, respectively, for summary judgment, unanimously affirmed, without costs.
In order to impose absolute liability on a building owner, the injured party must prove a violation of Labor Law 240[1] and that said violation was the proximate cause of the injuries. Smith v. Hooker Chemicals, 89 A.D.2d 361, 455 N.Y.S.2d 446, app. dismissed, 58 N.Y.2d 824. In light of the fact that the injured plaintiff here admits that a gust of wind caused him to fall from the ladder while he was holding a storm window in both hands, and since there is no evidence that the placement or positioning of the ladder caused plaintiff to fall, there are unresolved material issues of fact with regard to the proximate cause of the accident. See e.g., Landry v. DiSarro, 149 A.D.2d 859, 540 N.Y.S.2d 549, affd. 74 N.Y.2d 940, 550 N.Y.S.2d 274, 549 N.E.2d 476. While plaintiff's expert opines that, inter alia, the lack of a safety harness on the ladder failed to provide proper protection for plaintiff, that is an issue for the jury to determine. See Miller v. Long Island Lighting, 166 A.D.2d 564, 560 N.Y.S.2d 847.
As between the third-party defendant, Thermocell, plaintiff's employer, and defendants, there are issues of fact regarding the extent of authority and control each exercised over plaintiff. Accordingly, defendant's motion for summary judgment as against Thermocell was properly denied.
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...(emphasis in original). In support of their argument, defendants and third-party defendant rely on Zeitner v. Herbmax Sharon Assoc., 194 A.D.2d 414, 599 N.Y.S.2d 234 (1st Dep't 1993). In that case, the court denied plaintiff's motion for summary judgment on the issue of liability because pl......
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