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Cricks v. Niagara Mohawk Power Corp.

278 A.D.2d 813 Court N.Y. App. Div. Decision date 2000-12-27 English

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p. 813
Michael J. Cricks, Respondent, v Niagara Mohawk Power Corporation, Appellant and Third-Party Plaintiff. All-tel New York, Inc., Third-Party Defendant-Appellant.
[718 NYS2d 537]

Order unanimously affirmed with costs. Memoran

p. 814
dum: Plaintiff commenced this action to recover damages for injuries he sustained when he fell from a utility pole jointly owned by defendant and third-party defendant. Supreme Court properly granted plaintiff’s motion for partial summary judgment on liability on the Labor Law § 240 (1) cause of action and denied those parts of the cross motions of defendant and third-party defendant seeking summary judgment dismissing that cause of action. Plaintiff met his initial burden by submitting proof establishing that his injury was proximately caused by the failure of a safety device to afford him proper protection from an elevation-related risk (see, Raczka v Nichter Util. Constr. Co., 272 AD2d 874 ), and neither defendant nor third-party defendant raised a triable issue of fact whether plaintiffs actions were the sole proximate cause of the accident (see, Evans v Anheuser-Busch, Inc., 277 AD2d 874 ).

We reject the contention of third-party defendant that plaintiff is not entitled to the protection of Labor Law § 240 (1) because he was in training when he was injured. Plaintiff was employed as a service technician for third-party defendant and was engaged in on-the-job training at the direction of third-party defendant. At the time of the accident, plaintiff was “both ‘employed’ and an ‘employee’ within the terms of the statute” and is within the class of persons entitled to its protection (Yearke v Zarcone, 57 AD2d 457 , 460, lv denied 43 NY2d 643 ; cf., Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970 , 971).

Third-party defendant’s remaining contention is raised for the first time on appeal and thus is not properly before us (see, Cole v Metropolitan Life Ins. Co., 273 AD2d 832 , 834). (Appeal from Order of Supreme Court, Cattaraugus County, Cosgrove, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Green, Pine, Kehoe and Balio, JJ.

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