Summary
In Donohue, the court denied Plaintiff's motion for summary judgment because "the vague and sometimes contradictory statements... in his deposition testimony, his amended verified bill of particulars, and his affidavit in support of the motion for summary judgment fail[ed] to demonstrate the manner in which the accident occurred and the proximate cause of his fall."
Summary of this case from Djokic v. Trinity Boxing & Athletic Club, Inc.Opinion
March 19, 1990
Appeal from the Supreme Court, Nassau County (Collins, J.).
Ordered that the order is affirmed, without costs or disbursements.
Contrary to the plaintiff's present contention, he has failed to demonstrate his entitlement to judgment as a matter of law under Labor Law § 240 (1). Assuming that the ladder from which he fell was not equipped with any safety devices (an issue which the plaintiff's deposition testimony renders unclear), he has failed to adequately establish that the absence of such safety devices constituted a proximate cause of his injuries (see generally, Duda v Rouse Constr. Corp., 32 N.Y.2d 405; Mack v Altmans Stage Light. Co., 98 A.D.2d 468). Indeed, the vague and sometimes contradictory statements of the plaintiff in his deposition testimony, his amended verified bill of particulars, and his affidavit in support of the motion for summary judgment fail to demonstrate the manner in which the accident occurred and the proximate cause of his fall (see, e.g., Senken v Eklund, 150 A.D.2d 671; Antunes v 950 Park Ave. Corp., 149 A.D.2d 332). Moreover, the denial of summary judgment is appropriate where the injured party is the sole witness to the accident, as the salient facts are exclusively within his knowledge and his credibility is placed in issue (see, Antunes v 950 Park Ave. Corp., supra; Vitti v Maloney, 109 A.D.2d 836; Parsolano v County of Nassau, 93 A.D.2d 815; Parello v Clover Leaf Towers Corp., 38 A.D.2d 731).
Inasmuch as the plaintiff has failed to establish a prima facie entitlement to judgment as a matter of law, his contention that the papers submitted in opposition to the motion were legally inadequate is rendered irrelevant (see, Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851; Andersen v Betz, 150 A.D.2d 743). Kunzeman, J.P., Kooper, Sullivan and Miller, JJ., concur.