Opinion
2773
January 14, 2003.
Order, Supreme Court, Bronx County (Paul Victor, J.), entered May 23, 2002, which denied defendants-appellants' motion for summary judgment dismissing the complaint and all counterclaims and cross claims as against them, unanimously affirmed, without costs.
Carol R. Finocchio, for Defendant.
Nardelli, J.P., Tom, Mazzarelli, Andrias, Saxe, JJ.
While summary judgment may be granted where a preclusion order relates to all aspects of the plaintiff's proof, thereby effectively preventing the plaintiff from making a case (Tirone v. Staten Is. Univ. Hosp., 264 A.D.2d 415), here plaintiff was precluded only from testifying at trial. Inasmuch as plaintiff seeks to recover not only for negligence but also for violation of absolute liability provisions of the Labor Law, it cannot be said that plaintiff necessarily will not be able to prove his case without testifying and that defendants are entitled to judgment as a matter of law. Since defendants failed to make a prima facie showing of entitlement to judgment as a matter of law, the sufficiency of plaintiff's opposition is immaterial (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.