HIRSCH v. A & B Heating & Air Conditioning, Inc., third-party defendant.

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

Victor HIRSCH, appellant, v. GREENRIDGE ASSOCIATES, LLC, et al., defendants third-party plaintiffs-respondents; A & B Heating & Air Conditioning, Inc., third-party defendant.

Decided: February 21, 2006

STEPHEN G. CRANE, J.P., GLORIA GOLDSTEIN, ROBERT A. LIFSON, and MARK C. DILLON, JJ. Ginsberg & Broome, P.C., New York, N.Y. (Robert M. Ginsberg of counsel), for appellant. Smith & Laquercia, LLP, New York, N.Y. (Robert Napoles of counsel), for defendants third-party plaintiffs-respondents. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (John Doody and Debra A. Adler of counsel), for third-party defendant.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Hart, J.), dated January 6, 2005, as denied that branch of his motion which was for summary judgment on the issue of liability under Labor Law § 240(1).

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

 The plaintiff moved, inter alia, for partial summary judgment on the issue of liability under Labor Law § 240(1).   In his affidavit submitted in support of the motion, the plaintiff alleged that the ladder he was using slipped from under him, causing him to fall and sustain serious injuries.   He further alleged that the surface available for placing the ladder was “dirty, rocky and somewhat uneven.”   The Supreme Court denied that branch of the motion, finding that, as no depositions had yet been held, it would be premature to grant summary judgment on the issue of liability under Labor Law § 240(1) at this stage of the proceedings.   We agree.

 Where, as here, the movant is the sole witness to the accident, “the denial of summary judgment is appropriate ․ as the salient facts are exclusively within [the movant's] knowledge and his credibility is placed in issue” (Donohue v. Elite Assoc., 159 A.D.2d 605, 606, 552 N.Y.S.2d 659;  see Yellitz v. Brooklyn Union Gas Co., 242 A.D.2d 270, 271, 661 N.Y.S.2d 36;  Antunes v. 950 Park Ave. Corp., 149 A.D.2d 332, 333, 539 N.Y.S.2d 909;  Parsolano v. County of Nassau, 93 A.D.2d 815, 817, 460 N.Y.S.2d 823;  cf. Klein v. City of New York, 89 N.Y.2d 833, 834, 652 N.Y.S.2d 723, 675 N.E.2d 458;  Miller v. Long Is. Light. Co., 166 A.D.2d 564, 565, 560 N.Y.S.2d 847).   Therefore, the court properly denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability under Labor Law § 240(1).

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