SCHRON v. NEW YORK UNIVERSITY

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

Sean SCHRON, et al., Plaintiffs-Respondents, v. NEW YORK UNIVERSITY, et al., Defendants-Appellants.

Decided: January 27, 2005

ANDRIAS, J.P., SAXE, SWEENY, CATTERSON, JJ. Jaffe & Asher, LLP, New York (Marshall T. Potashner of counsel), for appellants. John M. O'Dowd, Jr., Staten Island, for respondents.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered January 8, 2004, which, to the extent appealed from as limited by the briefs, granted plaintiffs' motion for partial summary judgment on their Labor Law § 240 claim and denied defendants' cross motion for partial summary judgment dismissing said claim, unanimously affirmed, without costs.

The plaintiff construction worker's deposition testimony that he was injured at the work site when a wooden scaffolding plank struck him on the head was prima facie evidence of a violation of § 240(1), shifting the burden to the owner/manager defendants to raise a factual issue on liability (see Aragon v. 233 W. 21st St., 201 A.D.2d 353, 354, 607 N.Y.S.2d 642 [1994] ).   Defendants failed to rebut adequately plaintiffs' showing.