VILLANUEVA v. PROFESSIONAL ENVIRONMENTAL SYSTEMS INC (2008)

In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Johnson, J.), dated March 1, 2007, as denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The injured plaintiff allegedly was struck by a sheet of loose plywood while inspecting the roof of his employer's building.   Pursuant to a contract with the injured plaintiff's employer, the defendant had been replacing heating, ventilation, and air conditioning units on the roof of the building, and it had left various materials, including plywood, on the roof of the building.   The injured plaintiff alleged that heavy wind was blowing on the day of the accident.

The defendant failed to establish, prima facie, its entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).   Triable issues of fact exist, inter alia, as to whether the defendant adequately secured its equipment.   Since the defendant never met its initial burden as the movant, we need not review the sufficiency of the plaintiffs' opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).