SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

265 

CA 14-01716 

PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ. 

 

 

GREGORY MILLER, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

WEBB OF BUFFALO, LLC, 

DEFENDANT-RESPONDENT-APPELLANT, 

BURKE HOMES, LLC, AND TIME WARNER CABLE, INC., 

DEFENDANTS-APPELLANTS-RESPONDENTS. 

 

BURDEN, GULISANO & HICKEY, LLC, BUFFALO (ASHLYN N. MAUSOLF OF

COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT BURKE HOMES, LLC.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (AMANDA L. MACHACEK OF

COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT TIME WARNER CABLE, INC.

COHEN & LOMBARDO, P.C., BUFFALO (ERIN E. COLE OF COUNSEL), FOR

DEFENDANT-RESPONDENT-APPELLANT. 

PAUL WILLIAM BELTZ, P.C., BUFFALO (BRIAN R. HOGAN OF COUNSEL), FOR

PLAINTIFF-RESPONDENT.

 

Appeals and cross appeal from an order of the Supreme Court, Erie

County (Patrick H. NeMoyer, J.), entered December 3, 2013. The order

denied the motion and cross motions of defendants for summary

judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs, the motion and cross

motions are granted, and the complaint and cross claims are dismissed. 

Memorandum: Plaintiff commenced this Labor Law and common-law

negligence action seeking damages for injuries he sustained when he

fell from a first floor windowsill of a building undergoing renovation

and conversion into commercial and residential space. At the time of

the accident, plaintiff was employed by a subcontractor that was hired

by defendant Time Warner Cable, Inc. (Time Warner), to perform cable

installation work at the building. As part of that work, plaintiff

was instructed to run a ground wire from a room on the first floor to

a lockbox on the exterior of the building. He was unable to locate

anyone with a key to the building and therefore used a ladder to enter

the room through a window. While plaintiff was completing his task

inside the room, his coworkers removed the ladder. According to

plaintiff, he was told that the ladder would be returned in a couple

of minutes, and he decided to straddle the windowsill while he waited
-2- 265 

CA 14-01716 

for the ladder. As he sat on the windowsill, plaintiff leaned out to

say something to his coworkers, lost his balance, and fell to the

ground below. 

Supreme Court erred in denying the motion of defendant Burke

Homes, LLC, and the cross motions of defendants Webb of Buffalo, LLC,

and Time Warner seeking summary judgment dismissing the complaint and

cross claims against them. Defendants met their burden of

establishing as a matter of law that plaintiff’s conduct was the sole

proximate cause of the accident, and plaintiff failed to raise a

triable issue of fact (see Nalepa v South Hill Bus. Campus, LLC, 123

AD3d 1190, 1193; Kerrigan v TDX Constr. Corp., 108 AD3d 468, 471, lv

denied 22 NY3d 862; Capellan v King Wire Co., 19 AD3d 530, 532). 

Defendants established that there was no causal relationship between

any duties owed by them to plaintiff pursuant to the Labor Law or the

common law and the injuries plaintiff sustained, and that they could

not reasonably have foreseen that a person in plaintiff’s

circumstances would not wait for the ladder inside the building (see

Mack v Altmans Stage Light. Co., 98 AD2d 468, 472). Before he decided

to straddle the windowsill, “ ‘[p]laintiff was not in an emergent

situation. He was in a position of absolute safety, although subject

to inconvenience’ ” (id., quoting Guida v 154 W. 14th St. Co., 13 AD2d

695, 696, affd 11 NY2d 731). Plaintiff was aware that the ladder

would be returned “when he decided to put his safety at risk” by

straddling the windowsill, and plaintiff’s conduct thus superseded any

alleged breach of duty by defendants “and terminated defendants’

liability for his injuries” (Egan v A.J. Constr. Corp., 94 NY2d 839,

841; see Misirlakis v East-Coast Entertainment Props., 297 AD2d 312,

312, lv denied 100 NY2d 637; Mack, 98 AD2d at 472-473).

Entered: March 27, 2015 Frances E. Cafarell

Clerk of the Court