In Musselman v. Charles A. Gaetano Constr. Corp., (277 AD2d 691, 716 N.Y.S.2d 466 [3d Dept 2000]), the plaintiff was working on a scaffold but was unable to lower it to the ground because a truck was in the way. He testified that he saw no other way to exit the scaffold, and thus he aligned it with an open window, stepped onto the sill, and while attempting to climb over a wooden board that had been placed inside the sill, he fell, landing three feet to the floor.

The Court affirmed the denial of the plaintiff's motion for summary judgment on liability, stating that the scaffold did not slip, collapse, or otherwise fail to support him and that the deficiency was the defendants' alleged failure to provide a way for him to return to the ground safely.

It also observed that a fall from "essentially the same level" to a lower level is "insufficient to establish that the scaffold did not provide appropriate protection as a matter of law."

Questions of fact, however, remained as to whether the placement of the scaffold and maintenance of the area beneath it required the plaintiff to attempt to get off the scaffold in a way that exposed him to an elevation-related hazard which caused his injuries.