        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

619
CA 16-01958
PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND SCUDDER, JJ.


LLOYD PICHE, PLAINTIFF-APPELLANT,

                    V                              MEMORANDUM AND ORDER

SYNERGY TOOLING SYSTEMS, INC., C.V.M.
ELECTRIC, INC., DEFENDANTS-RESPONDENTS,
AND N. CHOOPS PAINTING AND DECORATING, INC.,
DEFENDANT.
------------------------------------------------
SYNERGY TOOLING SYSTEMS, INC., THIRD-PARTY
PLAINTIFF,

                    V

AMHERST ACOUSTICAL, INC., THIRD-PARTY DEFENDANT.


PAUL WILLIAM BELTZ, P.C., BUFFALO (ANNE B. RIMMLER OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (ROBERT E. SCOTT OF COUNSEL),
FOR DEFENDANT-RESPONDENT SYNERGY TOOLING SYSTEMS, INC. AND THIRD-PARTY
PLAINTIFF.

GOLDBERG SEGALLA LLP, BUFFALO (DANIEL T. HUNTER OF COUNSEL), FOR
DEFENDANT-RESPONDENT C.V.M. ELECTRIC, INC.


     Appeal from an order of the Supreme Court, Erie County (Patrick
H. NeMoyer, J.), entered December 23, 2015. The order, among other
things, granted the motion of defendant-third-party plaintiff for
partial summary judgment dismissing the Labor Law § 240 (1) claim and
denied plaintiff’s cross motion for partial summary judgment on
liability on that claim against defendant-third-party plaintiff.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the motion and reinstating
the Labor Law § 240 (1) claim against defendant-third-party plaintiff
Synergy Tooling Systems, Inc. and as modified the order is affirmed
without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when he fell while wearing stilts in order to
install ceiling tile. We explained in a prior appeal that plaintiff
fell when he stepped on a flexible electrical wire conduit that was on
the floor (Piche v Synergy Tooling Sys., Inc., 134 AD3d 1439, 1440).
                                 -2-                           619
                                                         CA 16-01958

Defendant-third-party plaintiff Synergy Tooling Systems, Inc.
(defendant) moved for partial summary judgment dismissing the Labor
Law § 240 (1) claim against it, and plaintiff cross-moved for partial
summary judgment on liability on that claim against defendant.
Although we reject plaintiff’s contention that Supreme Court erred in
denying his cross motion, we agree with plaintiff that the court erred
in granting defendant’s motion. We therefore modify the order
accordingly.

     Even assuming, arguendo, that defendant established its
entitlement to judgment on the theory that plaintiff’s fall was caused
solely by stepping on the conduit, i.e., a “separate hazard wholly
unrelated to the risk which brought about the need for the safety
device in the first place” (Cohen v Memorial Sloan-Kettering Cancer
Ctr., 11 NY3d 823, 825; see Nicometi v Vineyards of Fredonia, LLC, 25
NY3d 90, 101, rearg denied 25 NY3d 1195), we nevertheless conclude
that plaintiff raised an issue of fact sufficient to defeat the motion
(see generally Zuckerman v City of New York, 49 NY2d 557, 562). In
his affidavit submitted in opposition to defendant’s motion, plaintiff
clarified his deposition testimony with respect to why and how he fell
(see Cox v McCormick Farms, Inc., 144 AD3d 1533, 1534). Plaintiff was
installing the last of eight ceiling tiles in a room. He explained in
his deposition and in his affidavit that his work was obstructed by
electrical wiring and conduit in the ceiling that had not been
properly secured, thereby leaving limited space in which to install
the tile, which measured two feet by four feet. With his arms fully
extended overhead while attempting to move and secure the electrical
wiring and conduit, he lost his balance and was forced to step
backwards, at which point his right stilt came into contact with the
conduit and he fell. Thus, plaintiff raised an issue of fact whether
his “injuries were the direct consequence of a failure to provide
adequate protection against a risk arising from a physically
significant height differential” while he was attempting to secure the
electrical wiring and conduit in the ceiling in order to install the
ceiling tile (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603),
and were not solely caused by the presence of the conduit on the floor
(cf. Nicometi, 25 NY3d at 101; Melber v 6333 Main St., 91 NY2d 759,
763-764; McNabb v Oot Bros., Inc., 64 AD3d 1237, 1238-1239).

     With respect to plaintiff’s cross motion, we conclude that he
failed to establish his entitlement to judgment as a matter of law
inasmuch as his submissions failed to eliminate any issues of fact
with respect to whether his injuries were caused solely by the
presence of the conduit on the floor (see Zuckerman, 49 NY2d at 562;
see generally Nicometi, 25 NY3d at 101).




Entered:   May 5, 2017                          Frances E. Cafarell
                                                Clerk of the Court
