MACCHIA v. NASTASI WHITE INC

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Supreme Court, Appellate Division, First Department, New York.

Joe MACCHIA, Plaintiff-Appellant, v. NASTASI WHITE, INC., Defendant,

McClier Corporation, et al., Defendants-Respondents. McClier Corporation, Third-Party Plaintiff, v. Theodore Williams Construction Company, Third-Party Defendant-Respondent.

Decided: February 14, 2006

TOM, J.P., MAZZARELLI, SAXE, NARDELLI, McGUIRE, JJ. Paul F. McAloon, P.C., New York (Paul F. McAloon of counsel), for appellant. Callan, Koster, Brady & Brennan, LLP, New York (Jason E. Goldberg of counsel), for respondents.

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 A.D.2d 335, 627 N.Y.S.2d 43 [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.