Majority
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Feinberg, J.), dated November 27, 1996, which granted the plaintiffs 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 plaintiffs motion is denied.
The inconsistent versions of the accident presented by the plaintiff at his examination before trial and in his affidavit raise a question of fact as to his credibility (see, Xirakis v 1115 Fifth Ave. Corp., 226 AD2d 452 ; Miller v Long Is. Light. Co., 166 AD2d 564 ; Donohue v Elite Assocs., 159 AD2d 605 ) which precludes the granting of summary judgment.
The defendant’s contention that it is entitled to summary judgment dismissing the cause of action predicated on Labor Law § 200 is unpreserved for appellate review. Bracken, J. P., Santucci, Goldstein and Luciano, JJ., concur.
Cases cited
- Xirakis v. 1115 Fifth Avenue Corp. 226 AD2d 452 p. 619
- Miller v. Long Island Lighting Co. 166 AD2d 564 p. 619
- Donohue v. Elite Associates, Inc. 159 AD2d 605 p. 619