Boccia v City of New York

Boccia v City of New York 2007 NY Slip Op 10069 [46 AD3d 421] December 20, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

Michael Boccia et al., Appellants,
v
City of New York et al., Respondents.

—[*1] Pollack, Pollack, Isaac & DeCicco, New York City (Brian J. Isaac of counsel), for appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York City (Debra A. Adler of counsel), for respondents.

Order, Supreme Court, Bronx County, (Yvonne Gonzalez, J.), entered October 6, 2006, which denied plaintiff's motion for partial summary judgment on his cause of action under Labor Law § 240 (1), unanimously affirmed, without costs.

Summary judgment in plaintiff's favor is precluded by an issue of fact as to whether plaintiff fell off the ladder because, as plaintiff claims, it "shifted" or "slipped" due to water, mud, concrete mortar, and other debris on the ground, or because, as defendants claim, plaintiff slipped on the ladder due to "wet concrete" or "wet cement" on his boots (compare McCormack v Helmsley-Spear, Inc., 233 AD2d 203 [1996], with Cruz v Turner Constr. Co., 279 AD2d 322 [2001]). That issue is raised by the accident reports prepared by plaintiff's foreman in plaintiff's presence on the basis of information provided by plaintiff stating that plaintiff slipped on the ladder due to a wet substance on his boots (see Buckley v J.A. Jones/GMO, 38 AD3d 461 [2007]; Antenucci v Three Dogs, LLC, 41 AD3d 205, 206 [2007]). Concur—Saxe, J.P., Friedman, Sweeny, McGuire and Malone, JJ.