McCATTY v. [And A Third-Party Action]. (1999)

Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered March 6, 1998, which, in an action for personal injuries by a laborer against a building owner, denied plaintiff's motion for summary judgment on the issue of liability under Labor Law §§ 240(1) and 241(6), unanimously affirmed, without costs.

The affidavit and deposition testimony that plaintiff submitted in support of the motion, which assert that he was injured by bricks that fell from the wall of an existing structure, or an opening therein, as he was cleaning out concrete on the ground floor, failed to establish a prima facie right to judgment as a matter of law under either Labor Law § 240(1) (see, Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 490-491, 634 N.Y.S.2d 35, 657 N.E.2d 1318;  Dias v. Stahl, 256 A.D.2d 235, 682 N.Y.S.2d 383;  Amato v. State of New York, 241 A.D.2d 400, 401, 660 N.Y.S.2d 576, lv. denied 91 N.Y.2d 805, 668 N.Y.S.2d 560, 691 N.E.2d 632), or Labor Law § 241(6) based on a violation of 12 NYCRR 23-1.7(a)(1) (see, Amato v. State of New York, supra, at 402, 660 N.Y.S.2d 576).   Thus, denial of the motion was required regardless of defendant's failure to submit any admissible evidence in support of its claim that plaintiff was injured when a brick wall he was attempting to knock down with a sledge hammer fell on him (see, Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

MEMORANDUM DECISION.