# McDaniel v. Fischione Construction Co.

> Appellate Division of the Supreme Court of the State of New York · March 15, 2002 · 292 A.D.2d 759

URL: https://www.frixlaw.com/law-library/cases/6083987

## Case

- **Full name:** Bruce A. McDaniel v. Fischione Construction Co., Inc., and Third-Party Plaintiff-Respondent. Keith Ramsey Drywall Services, Inc., Third-Party
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** March 15, 2002
- **Citations:** 292 A.D.2d 759; 739 N.Y.S.2d 513
- **Precedential status:** Published
- **Opinion:** Dissent by Burns
- **Judges:** Burns
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6083987

## Opinion text

Burns, J.
(dissenting in part). I respectfully dissent in part. In my view, Supreme Court erred in granting plaintiffs cross motion for partial summary judgment on liability pursuant to Labor Law § 240 (1). Even assuming, arguendo, that plaintiff met his initial burden on the cross motion, I conclude that defendant and third-party defendant, Keith Ramsey Drywall Services (Ramsey), raised an issue of fact whether the actions of plaintiff were the sole proximate cause of his injuries (see, Weininger v Hagedorn & Co., 91 NY2d 958, 960 , rearg denied 92 NY2d 875; see also, Sopha v Combustion Eng’g, 261 AD2d 911, 911-912 ). According to Ramsey’s foreman, he never instmcted or advised plaintiff to stand on the walk-ups and in fact specifically instmcted plaintiff not to use stacked walk-ups as a work platform. In addition, it is uncontested that, at the time of plaintiffs accident, there was a scaffold, a step ladder *761 and an extension ladder present in the room where plaintiff was working. I therefore would modify the order by denying plaintiff’s cross motion. Present — Pigott, Jr., P.J., Pine, Wisner, Burns and Lawton, JJ.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6083987. Public record. Not legal advice.