Abrams v Port Auth. Trans-Hudson Corp.

Abrams v Port Auth. Trans-Hudson Corp. 2007 NY Slip Op 03206 [39 AD3d 350] April 17, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 6, 2007

Sherman Abrams, Appellant,
v
Port Authority Trans-Hudson Corporation, Respondent.

—[*1] Ginsberg & Broome, P.C., New York (Robert M. Ginsberg of counsel), for appellant.

Milton H. Pachter, New York (Joan F. Bennett of counsel), for respondent.

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered October 23, 2006, which, in an action for personal injuries under the Federal Employers' Liability Act (45 USC § 51 et seq.), denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

Plaintiff's moving papers fail to make a prima facie showing that he was not comparatively negligent (see McCabe v CSX Transp., Inc., 27 AD3d 1150 [2006]). Deposition testimony tends to show that plaintiff knowingly stood near a coworker, idly and at times inattentive, while the coworker was in the process of moving awkward, 10-to-12-foot-long hoses, a job that plaintiff had been instructed to assist the coworker with. Plaintiff's moving papers do not explain why he did not assist the coworker, pay attention to the work the coworker was doing, or move a safe distance away. Concur—Saxe, J.P., Marlow, Buckley, Catterson and McGuire, JJ.