                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 23, 2014                   517956
________________________________

JERRY W. ORTMAN,
                    Appellant,
     v
                                            MEMORANDUM AND ORDER
JAMES LOGSDON et al.,
   Individually and Doing
   Business as SADDLEBACK FARM,
                    Respondents.
________________________________


Calendar Date:   September 8, 2014

Before:   McCarthy, J.P., Rose, Egan Jr., Devine and Clark, JJ.

                             __________


      Meggesto, Crossett & Valerino, LLP, Syracuse (Heather R.
LaDieu of counsel), for appellant.

      Coughlin & Gerhart, LLP, Binghamton (Brian Sadonis of
counsel), for respondents.

                             __________


Egan Jr., J.

      Appeal from an order of the Supreme Court (McDermott, J.),
entered May 28, 2013 in Madison County, which denied plaintiff's
motion for partial summary judgment on the issue of liability
pursuant to Labor Law § 240 (1).

      Defendants are the owners of a 65-acre parcel of land
located in the Town of Hamilton, Madison County known as
Saddleback Farm, upon which they operate, among other things, a
horse-boarding business. In May 2010, defendants contracted with
Ralph Colvin to construct a pole barn on the property that was to
be used for the training and exercising of horses and storage,
and Colvin, in turn, employed plaintiff to assist with this
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project. On June 11, 2010, plaintiff and others were installing
wood purlins across the rafters on the pole barn. According to
plaintiff, he was injured when one of the purlins near the peak
of the roof broke (allegedly due to a knot in the wood), causing
him to fall approximately 30 feet to the ground.

      Plaintiff thereafter commenced this action against
defendants alleging common-law negligence and violations of Labor
Law §§ 200, 240 (1) and 241 (6). Following joinder of issue and
discovery, plaintiff moved for partial summary judgment on the
issue of liability as to his Labor Law § 240 (1) claim, which
defendants opposed. Supreme Court denied plaintiff's motion,
prompting this appeal.

      To prevail on his motion for partial summary judgment on
his Labor Law § 240 (1) claim, plaintiff bore the burden of
establishing – as a matter of law – that he was not provided with
proper safety devices (or that the devices actually furnished
were inadequate) and that such failure, in turn, was the
proximate cause of his gravity-related injuries (see Gould v E.E.
Austin & Son, Inc., 114 AD3d 1208, 1208 [2014]; Jackson v Heitman
Funds/191 Colonie LLC, 111 AD3d 1208, 1209 [2013]; Williams v
Town of Pittstown, 100 AD3d 1250, 1251 [2012]). Viewing the
evidence in the light most favorable to defendants as the
nonmoving parties (see Evarts v Pyro Eng'g, Inc., 117 AD3d 1148,
1152 [2014]; Silvia v Bow Tie Partners, LLC, 77 AD3d 1143, 1146
[2010]), we find that the record presents questions of fact as to
how the accident occurred and the availability, feasability and
adequacy of certain safety devices at the work site.

      Regarding the happening of the accident, both plaintiff and
Colvin admitted that they initially advised medical personnel
that plaintiff was injured when he fell from a hay mound or hay
loft — purportedly in an effort to have Colvin's workers'
compensation insurance cover plaintiff's injuries. Documents in
the record variously reflect that plaintiff fell from either a
hay mound, a hay loft, a ladder or a barn and from a height
ranging from 15 to 35 feet. Given the divergent accounts of how
the accident occurred, including plaintiff's current version
indicating that he fell from a purlin inside of the barn, summary
judgment is inappropriate. Notably, if the accident did not take
                              -3-                517956

place inside of the barn, the alleged unavailability and
insufficiency of safety devices at defendants' job site would be
irrelevant.

      Additionally, although defendants – as the owners of the
property – each testified that they did not personally provide
plaintiff with any safety equipment, plaintiff, Colvin and
Colvin's son all agreed that there was at least one extension
ladder at the work site on the day in question, and plaintiff
acknowledged that he used this ladder – at least initially –
while installing the purlins. Hence, this is not a case where
there was an utter and complete absence of an available safety
device (see Briggs v Halterman, 267 AD2d 753, 754 [1999]; compare
Dalaba v City of Schenectady, 61 AD3d 1151, 1152 [2009]).1 Where
an enumerated safety device has been furnished, whether such
device afforded proper protection usually is a question of fact
(see Beardslee v Cornell Univ., 72 AD3d 1371, 1372 [2010]; Canino
v Electronic Tech. Co., 28 AD3d 932, 933 [2006]; Briggs v
Halterman, 267 AD2d at 754-755). Here, the record contains
conflicting testimony as to whether the extension ladder was
capable of reaching the peak of the roof on the pole barn and,
further, whether the ladder could be used to install the purlins
in the first instance,2 thereby presenting a triable issue of
fact as to whether the ladder that plaintiff utilized to perform
his elevation-related work afforded him proper protection within


    1
        The record also contains conflicting proof as to the
presence of additional safety devices – notably, a scaffold, a
bucket truck and certain safety harnesses/belts/lanyards – at the
work site, the feasibility of using such devices in performing
the injury-producing work and whether those devices would afford
adequate protection to plaintiff.
    2
        Plaintiff testified that one could nail the purlins in
place while standing on the extension ladder, but that the ladder
would need to be moved repeatedly as each successive purlin was
affixed. Colvin's son, on the other hand, testified that a
ladder could not be used for installing the purlins, as one
needed to be on the exterior of the roof in order to accomplish
this task.
                                -4-                  517956

the meaning of the statute. Accordingly, Supreme Court's order
denying plaintiff's motion is affirmed.3

        McCarthy, J.P., Rose, Devine and Clark, JJ., concur.



        ORDERED that the order is affirmed, with costs.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court




    3
        Contrary to defendants' assertion, the record fails to
reflect that plaintiff "deliberately refused" to utilize
available safety devices (Arey v M. Dunn, Inc., 29 AD3d 1137,
1139 [2006] [internal quotation marks and citation omitted]; see
Dalaba v City of Schenectady, 61 AD3d at 1152-1153) and,
therefore, we do not find plaintiff to be a recalcitrant worker.
