MICHAEL LA VEGLIA, Appellant-Respondent, v ST. FRANCIS HOSPITAL et al., Defendants, and ORTHOPEDIC ASSOCIATES OF DUTCHESS COUNTY, P.C., Respondent-Appellant.
[912 NYS2d 611]
Supreme Court, Appellate Division, Second Department, New York
November 23, 2010
cident. In his report, Dr. Sarno concluded that the plaintiff sustained sprains of the lumbar and cervical areas of her spine as a result of the accident. He noted significant limitations in range of motion on both left and right lateral rotation of the cervical area of her spine. Moreover, Dr. Sarno did not attribute these limitations to any cause other than the sprain sustained in the March 2006 accident. Since the defendants’ moving papers failed to establish their prima facie entitlement to judgment as a matter of law (see Levin v Khan, 73 AD3d 991 [2010]; Moore v Stasi, 62 AD3d 764, 765 [2009]; Ali v Rivera, 52 AD3d 445 [2008]; Dux v Maddaloni, 51 AD3d 967, 968 [2008]), their motions should have been denied without regard to the sufficiency of the plaintiff‘s papers submitted in opposition (see Moore v Stasi, 62 AD3d at 765; McMillian v Naparano, 61 AD3d 943 [2009]; Yung v Eager, 51 AD3d 638, 639 [2008]). Fisher, J.P., Florio, Leventhal and Hall, JJ., concur.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Dolan, J.), dated March 4, 2009, as granted those branches of the motion of the defendant Orthopedic Associates of Dutchess County, P.C., which were for summary judgment dismissing the common-law negligence,
Ordered that order is modified, on the law, (1) by deleting the provision thereof granting that branch of the motion of the defendant
In August 2004 the plaintiff was working as a carpenter on a project involving renovation of office space for the lessee of that space, the defendant Orthopedic Associates of Dutchess County, P.C. (hereinafter the defendant). The plaintiff alleged that debris, including metal studs 10 to 12 feet long, were thrown down a chute from the fourth floor of the subject building, and that he was responsible for unclogging the bottom of the chute on the ground floor. He further alleged that he was injured when, while clearing the chute, he was struck on the hand and lower arm by one of those metal studs that had either been (a) deposited into the chute on the fourth floor and fell down the interior of the chute before striking him as he worked on the ground floor, (b) deposited into the chute on the fourth floor, and became blocked by a stud lodged near the bottom of the chute, but again began to fall when the plaintiff dislodged the lower stud, or (c) lodged near the bottom of the chute, but had become dislodged when another metal stud fell several stories down the interior of the chute and struck it. He commenced this action against, among others, the defendant, alleging common-law negligence and violations of
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Nonetheless, that branch of the defendant‘s motion which was for summary judgment dismissing the cause of action under
With respect to that branch of its motion which was for summary judgment dismissing the
FISHER, J.P.
COVELLO
HALL
SGROI, JJ.
