BOCCIA v. CITY OF NEW YORK (2007)

Order, Supreme Court, Bronx County, (Yvonne Gonzalez, J.), entered October 6, 2006, which denied plaintiff's motion for partial summary judgment on his cause of action under Labor Law § 240(1), unanimously affirmed, without costs.

Summary judgment in plaintiff's favor is precluded by an issue of fact as to whether plaintiff fell off the ladder because, as plaintiff claims, it “shifted” or “slipped” due to water, mud, concrete mortar, and other debris on the ground, or because, as defendants claim, plaintiff slipped on the ladder due to “wet concrete” or “wet cement” on his boots (compare McCormack v. Helmsley-Spear, Inc., 233 A.D.2d 203, 649 N.Y.S.2d 697 [1996] with Cruz v. Turner Constr. Co., 279 A.D.2d 322, 720 N.Y.S.2d 10 [2001] ).   That issue is raised by the accident reports prepared by plaintiff's foreman in plaintiff's presence on the basis of information provided by plaintiff stating that plaintiff slipped on the ladder due to a wet substance on his boots (see Buckley v. J.A. Jones/GMO, 38 A.D.3d 461, 832 N.Y.S.2d 560 [2007];  Antenucci v. Three Dogs, LLC, 41 A.D.3d 205, 206, 838 N.Y.S.2d 513 [2007] ).