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Morris v. Mark IV Construction Co.

203 A.D.2d 922 Court N.Y. App. Div. Decision date 1994-04-15 English

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p. 922
Donald I. Morris, Appellant, v Mark IV Construction Co., Inc., et al., Respondents. Mark IV Construction Co., Inc., Third-Party Plaintiff, v TDA Residential Heating Installation, Inc., Third-Party Defendant-Respondent.
[611 NYS2d 68]

—Order insofar as appealed from unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court should have granted plaintiffs motion for partial summary judgment with respect to liability on plaintiffs Labor Law § 240 (1) cause of action against Mark IV Construction Co., Inc. (Mark IV) and defendant Dun-Rite Heating, Inc. (Dun-Rite).

By showing that he fell from an elevated worksite while engaging in activity protected under Labor Law § 240 (1), and that his injuries were proximately caused by the failure of Mark IV and Dun-Rite to provide proper safety devices "constructed, placed and operated” for his protection, plaintiff demonstrated his entitlement to summary judgment (Labor Law § 240 [1]; see, Zimmer v Chemung County Performing Arts, 65 NY2d 513 ; Halkias v Hamburg Cent. School Dist., 186 AD2d 1040 ).

p. 923
The fact that plaintiffs accident was unwitnessed does not preclude summary judgment (see, Halkias v Hamburg Cent. School Dist., supra; Marasco v Kaplan, Yll AD2d 933; cf., Wentland v Occidental Chem. Corp., 188 AD2d 1030 ; Carlos v Rochester Gen. Hosp., 163 AD2d 894 ). Moreover, the record reveals that all of plaintiffs statements relate a consistent and coherent version of the occurrence of the accident and, therefore, speculation by Mark IV and Dun-Rite that the accident may have occurred in another manner is not sufficient to raise a triable issue of fact (see, Damon v Starkweather, 185 AD2d 633 ). (Appeal from Order of Supreme Court, Monroe County, Affronti, J. — Labor Law § 240.) Present —Green, J. P., Balio, Fallon, Callahan and Boehm, JJ.

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