General
Timothy A. Kirkpatrick et al., Appellants, v. Diversified Sports, Inc., et al., Respondents
216 A.D.2d 891629 N.Y.S.2d 151·New York Supreme Court, Appellate Division·1995·NY
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Opinion
Timothy A. Kirkpatrick et al., Appellants, v Diversified Sports, Inc., et al., Respondents.
(Appeal No. 1.)
[629 NYS2d 151]
[MAJORITY]
Order unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying plaintiffs’ motion for partial summary judgment on Labor Law § 240 (1) liability. Plaintiffs established that Timothy A. Kirkpatrick (plaintiff) was injured when he fell from a ladder placed on top of scaffolding while painting the basketball court at the Sundown Fitness Club and that defendants violated their duty under Labor Law § 240 "to provide adequate safety devices and ensure that they were properly placed and operated to protect plaintiff” (Spike v Hollands’ Lbr. Co., 198 AD2d 891). There is no merit to the contention that plaintiff is not a member of the class protected under Labor Law § 240 (1). That class of persons includes all workers on the job (see, Haimes v New York Tel. Co., 46 NY2d 132).
Finally, there is no merit to the contention that summary judgment is inappropriate because plaintiff was the only witness to the beginning of his fall. Where, as here, a plaintiff’s version is not questioned, an issue of fact is not created to render summary judgment inappropriate (see, Morris v Mark IV Constr. Co., 203 AD2d 922; Marasco v Kaplan, 177 AD2d 933). (Appeal from Order of Supreme Court, Onondaga County, Mordue, J.—Labor Law.) Present—Lawton, J. P., Fallon, Wesley, Davis and Boehm, JJ.