Opinion
October 13, 1998
Appeal from the Supreme Court, Bronx County (Alan Saks, J.).
Plaintiff's sworn statements that he was injured when the scaffold on which he was working toppled over established a prima facie case under Labor Law § 240 Lab. (1). It is not enough for defendants to avoid summary judgment to speculate that there may be witnesses who might shed light or contradict plaintiff's version of the occurrence in view of plaintiff's deposition testimony that the rolling scaffold toppled over as another worker was pushing it, that he heard the worker say that the wheel came off, and that he did not know the name of this coworker or any of the other workers present at the time ( compare, Klein v. City of New York, 89 N.Y.2d 833, aff'g 222 A.D.2d 351, and Acosta v. 888 7th Ave. Assocs., 248 A.D.2d 284, with Eitner v. 119 W. 71st St. Owners Corp., 253 A.D.2d 641, and Saaverda v. East Fordham Rd. Real Estate Corp., 233 A.D.2d 125). Concerning the third-party action, the deposition testimony of third party plaintiff's principal and third-party plaintiff's contract with the owners raise issues of fact as to the nature, if any, of third-party plaintiff's supervision and control of the work site, including whether it had a representative on site with authority to instruct third-party defendant's workers in the use of the scaffold and to implement changes if he saw any safety violations ( cf., Buccini v. 1568 Broadway Assocs., 250 A.D.2d 466). Given this issue of fact, which was the reason urged by third-party defendant for denying summary judgment against it on the issue of indemnification, we need not reach the timeliness ground of CPLR 3212 (a) relied upon by the motion court.
Concur — Lerner, P. J., Sullivan, Mazzarelli, Andrias and Saxe, JJ.