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eBook details

• Title: Robert Carlos and Mary Carlos v. Rochester General Hospital
• Author : Supreme Court of New York
• Release Date : January 13, 1990
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 79 KB

Description

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied plaintiff's motion for partial summary
judgment on his Labor Law § 240 (1) cause of action. Plaintiff alleges that, while performing repair work on defendant's power
house building, he was injured when the ladder he was climbing tipped to one side and both he and the ladder fell to the ground.
The accident was not witnessed. To recover under section 240 (1) of the Labor Law, plaintiff must demonstrate that he was
injured in a fall from an elevated work site or that he was struck by an object that fell from an elevated work site (see,
Staples v Town of Amherst, 146 A.D.2d 292). Whether plaintiff fell while on the ladder or was injured in some other manner
is, therefore, a critical factual issue. Because the manner in which the accident occurred is within the exclusive knowledge
of the plaintiff, partial summary judgment is not appropriate (see, Parsolano v County of Nassau, 93 A.D.2d 815; Bruno v Home
Mut. Ins. Co. of Binghamton, 91 A.D.2d 1169). Plaintiff's testimonial version should be subjected to cross-examination and
his credibility assessed by the fact-finder after a trial (see, Castillo v General Acc. Ins. Co. of Amer., 111 A.D.2d 112,
113; Krupp v. Aetna Life & Cas. Co., 103 A.D.2d 252, 262; Siegel, Practice Commentaries, McKinney's Cons Laws of NY,
Book 7B, CPLR 3212, C3212:19).

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