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
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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.
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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.