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Morris v. Mark IV Construction Co.

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 15, 1994
203 A.D.2d 922 (N.Y. App. Div. 1994)

Opinion

April 15, 1994

Appeal from the Supreme Court, Monroe County, Affronti, J.

Present — Green, J.P., Balio, Fallon, Callahan and Boehm, JJ.


Order insofar as appealed from unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court should have granted plaintiff's motion for partial summary judgment with respect to liability on plaintiff's Labor Law § 240 (1) cause of action against Mark IV Construction Co., Inc. (Mark IV) and defendant Dun-Rite Heating, Inc. (Dun-Rite).

By showing that he fell from an elevated worksite while engaging in activity protected under Labor Law § 240 (1), and that his injuries were proximately caused by the failure of Mark IV and Dun-Rite to provide proper safety devices "constructed, placed and operated" for his protection, plaintiff demonstrated his entitlement to summary judgment (Labor Law § 240; see, Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513; Halkias v Hamburg Cent. School Dist., 186 A.D.2d 1040).

The fact that plaintiff's accident was unwitnessed does not preclude summary judgment (see, Halkias v Hamburg Cent. School Dist., supra; Marasco v Kaplan, 177 A.D.2d 933; cf., Wentland v Occidental Chem. Corp., 188 A.D.2d 1030; Carlos v Rochester Gen. Hosp., 163 A.D.2d 894). Moreover, the record reveals that all of plaintiff's statements relate a consistent and coherent version of the occurrence of the accident and, therefore, speculation by Mark IV and Dun-Rite that the accident may have occurred in another manner is not sufficient to raise a triable issue of fact (see, Damon v Stark-weather, 185 A.D.2d 633).


Summaries of

Morris v. Mark IV Construction Co.

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 15, 1994
203 A.D.2d 922 (N.Y. App. Div. 1994)
Case details for

Morris v. Mark IV Construction Co.

Case Details

Full title:DONALD I. MORRIS, Appellant, v. MARK IV CONSTRUCTION Co., INC., et al.…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Apr 15, 1994

Citations

203 A.D.2d 922 (N.Y. App. Div. 1994)
611 N.Y.S.2d 68

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