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

Frank NARDELLI, Respondent, v. YOUNG ISRAEL OF WOODMERE, et al., Appellants.

Decided: November 27, 2000

CORNELIUS J. O'BRIEN, J.P., WILLIAM C. THOMPSON, SONDRA MILLER and SANDRA J. FEUERSTEIN, JJ. Hurley, Fox, Selig and Kelleher, Stony Point, N.Y. (Peter Klose and Glenn W. Kelleher of counsel), for appellants. Brecher Fishman Pasternack Popish Heller Rubin & Reiff, P.C., New York, N.Y. (Jessica J. Hanlon of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (DeMaro, J.), dated December 6, 1999, which granted the plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240(1).

ORDERED that the order is reversed, on the law, with costs, and the motion is denied.

The plaintiff alleges that, while working as a mason tender, he was struck in the shoulder by a brick which fell from a scaffold.   No one else at the construction site saw a brick hit the plaintiff.   However, the defendants submitted evidence which raised an issue of fact regarding the plaintiff's credibility (see, Lardaro v. New York City Bldrs. Group, 271 A.D.2d 574, 706 N.Y.S.2d 174;  Masiello v. Belcastro, 237 A.D.2d 335, 655 N.Y.S.2d 57;  Figueroa v. Manhattanville College, 193 A.D.2d 778, 598 N.Y.S.2d 77).   Specifically, the defendants submitted evidence that the plaintiff did not complain of pain after the alleged accident, did not miss a day of work, and waited almost three months, until he was about to be laid off, to report the accident and seek medical attention.   When the plaintiff did report the accident, he did not remember the date he was allegedly injured.   Accordingly, the Supreme Court erred in granting partial summary judgment to the plaintiff.


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