Gonzalez v Vigo Constr. Corp.

[*1] Gonzalez v Vigo Constr. Corp. 2007 NY Slip Op 52210(U) [17 Misc 3d 1130(A)] Decided on July 30, 2007 Supreme Court, Queens County Dollard, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 3, 2007; it will not be published in the printed Official Reports.

Decided on July 30, 2007
Supreme Court, Queens County

Martin C. Gonzalez, etc.

against

Vigo Construction Corp., et al.



Vigo Construction Corp., et al.

against

East Wind Contracting Inc.



10349

James P. Dollard, J.

This is an action to recover money damages for personal injuries allegedly suffered as a result of an accident at a work site. The accident occurred on April 28, 2004, at a construction site located at 306 Lincoln Place, Brooklyn, New York. Defendant E. Management was the owner of the subject premises and defendant Vigo was the general contractor of a renovation project that was taking place at the premises. The plaintiff alleges claims for violations of Labor Law §§ 200, 240(1) and 241(6).

On a motion for summary judgment, the moving party must establish its prima facie entitlement to judgment as a matter of law (see Grob v Kings Realty Associates, LLC, 4 AD3d 394 [2004]). Here, the defendants met their burden by showing that plaintiff was unable to remember how the accident occurred or even what he was doing at the construction site or who was his employer at the time of the accident (see Silva v 81st St. & Ave. A Corp., 169 AD2d 402 [1991]). [*2]

Under some circumstances where a plaintiff is unable to testify about an accident he or she will not be held to as high a degree of proof in establishing his or her right to recover (Noseworthy v City of New York, 298 NY 76 [1948]). Here, even though the plaintiff is unable to recall how the accident occurred, the Noseworthy doctrine does not apply as the plaintiff and defendants are similarly situated in regard to their access to the facts concerning the accident which caused plaintiff's injuries (see Kuravskaya v Samjo Realty Corp., 281 AD2d 518 [2001]; Gayle v City of New York, 256 AD2d 541 [1998]; Lynn v Lynn, 216 AD2d 194 [1995]).

Even if the Noseworthy doctrine applies, this does not eliminate the plaintiff's obligation to introduce evidence supporting his prima facie case (see Jose v Richards, 307 AD2d 279 [2003]; Lynn, 216 AD2d at 195; Scheer v City of New York, 211 AD2d 778 [1995]). Here, giving plaintiff the benefit of every favorable inference, the evidence reveals that the cause of the plaintiff's accident is unknown and plaintiff's complaint must be dismissed (see Blanco v Oliveri, 304 AD2d 599 [2003]; Velez v 1163 Holding Ltd., 215 AD2d 276 [1995]). While the plaintiff alleges that he was struck by a falling piece of concrete, there is no admissible evidence of how the plaintiff was injured or what he was doing when he was injured (see Sieling v New York Convention Ctr. Dev. Corp., 35 AD3d 227 [2006]). Additionally, though the plaintiff alleges that there is a witness to the accident, in opposing the motion an affidavit from the claimed witness was not submitted. The plaintiff's argument that the anticipated testimony of this alleged witness supports denial of the motion is without merit. The plaintiff's attorney assertion of what this alleged witness will testify to at trial does not raise a triable issue of fact (see Dubiel v Parkchester Mgt. Corp., 284 AD2d 223 [2001]).

Accordingly the branch of the motion by defendant Vigo and cross motion by defendant E. Management for summary judgment dismissing the complaint is granted. The branch of the motion by defendant Vigo and cross motion by defendant E. Management for summary judgment for indemnification are denied as moot. In light of the foregoing determination, the third-party action for indemnification is dismissed as moot.

Dated: July 30, 2007