Macchia v. Nastasi White, Inc.

Feb 14, 2006
Versions:26 A.D.3d 225
809 N.Y.S.2d 47

Joe Macchia, Appellant, v Nastasi White, Inc., Defendant, and McClier Corporation et al., Respondents. McClier Corporation, Third-Party Plaintiff, v Theodore Williams Construction Company, Third-Party Defendant-Respondent. [809 NYS2d 47]

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered July 5, 2005, which, to the extent appealed from as limited by the briefs, denied plaintiff‘s motion for partial summary judgment, unanimously affirmed, without costs.

In the present circumstances, a material issue of fact as to whether the accident happened as plaintiff claims precludes summary disposition of the Labor Law § 240 (1) claim (see Manna v New York City Hous. Auth., 215 AD2d 335 [1995]). Plaintiff argues that defendants have not submitted any evidence to contradict his account. However, his own foreman testified that according to the daily job reports, plaintiff was not working on the date of the alleged accident. The foreman also testified that the task he had assigned plaintiff, i.e., washing the furniture with a rag, did not involve the use of a ladder. The foreman‘s account thus raises factual issues as to whether plaintiff was subjected to an elevation-related risk, and whether that activity was the proximate cause of his injury.

Concur—Tom, J.P., Mazzarelli, Saxe, Nardelli and McGuire, JJ.