Duchenne v 774 Dev., LLC

[*1] Duchenne v 774 Dev., LLC 2010 NY Slip Op 51976(U) [29 Misc 3d 135(A)] Decided on November 17, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 17, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, J.
570451/10

Reginald Duchenne, Plaintiff-Respondent,

against

774 Development, LLC, and Gotham Construction Co., LLC, Defendants-Appellants.

Defendants appeal from an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), dated July 14, 2009, which, upon renewal, granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim.

Per Curiam.

Order (Donald A. Miles, J.), dated July 14, 2009, affirmed, with $10 costs.

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on his Labor Law § 240(1) claim (see Szpakowski v Shelby Realty, LLC, 48 AD3d 268 [2008], lv denied 12 NY3d 708 [2009]). In opposition, defendants failed to raise a triable issue as to whether plaintiff was the sole proximate cause of the accident (see generally Romanczuk v Metropolitan Ins. & Annuity Co.,72 AD3d 592 [2010]; Collins v West 13th. St. Owners Corp., 63 AD3d 621 [2009]). Moreover, that plaintiff was the only witness to his accident presents no bar to summary judgment in his favor, since defendants failed to present a conflicting theory with supporting evidence or raise any bona fide credibility issues with respect to plaintiff's account of the accident (see Weber v Baccarat, Inc., 70 AD3d 487 [2010]; see also Klein v City of New York, 222 AD2d 351 [1995], affd 89 NY2d 833 [1996]). Defendants' statements regarding the accident and the scaffold's condition were based on hearsay, surmise and conjecture and were of no probative value (see Madalinski v Structure-Tone, Inc.,47 AD3d 687 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 17, 2010