WIKIERA v. New York City School Construction Authority, Defendant. (2019)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about January 15, 2019, which, to the extent appealed from, denied the motion of defendants City of New York and New York City Department of Education for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Summary judgment was properly denied in this action where plaintiff was allegedly injured when he fell from a scaffold while jack-hammering stone facing.  Although defendants submitted documentary evidence, including plaintiff's employer's time sheets and payroll records, indicating that plaintiff did not work at the construction site on October 15, 2012, plaintiff unwaveringly testified at deposition that he did work that day and was injured in a fall from a scaffold when its wooden planks shifted.  Such evidence presents credibility issues that cannot be resolved on this motion for summary judgment (see generally S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 313 N.E.2d 776 [1974] ).