Opinion
No. 17153 Index No. 22146/19E No. 2022-00577
01-24-2023
Aboulaye Sangare, Plaintiff-Respondent, v. 985 Bruckner Boulevard Housing Development Fund Corporation et al., Defendants-Appellants.
London Fischer LLP, New York (Brian A. Kalman of counsel), for appellants. Bergstein & Ullrich, New Paltz (Stephen Bergstein of counsel), for respondent.
London Fischer LLP, New York (Brian A. Kalman of counsel), for appellants.
Bergstein & Ullrich, New Paltz (Stephen Bergstein of counsel), for respondent.
Before: Kern, J.P., Oing, Gesmer, Scarpulla, Rodriguez, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered January 13, 2022, which granted plaintiff's motion for partial summary judgment on liability on his Labor Law § 240(1) claim, unanimously affirmed, without costs.
Plaintiff made a prima facie showing of entitlement to partial summary judgment on liability on his Labor Law § 240(1) claim, when he testified that a scaffold above where he was cleaning collapsed, causing portions of it to strike him (see Aburto v City of New York, 94 A.D.3d 640 [1st Dept 2012]). The motion was not premature as defendants failed to show what discovery was needed and what any additional discovery could be expected to reveal (see CPLR 3212[f]; Cruz v City of New York, 135 A.D.3d 644 [1st Dept 2016]; Miller v Icon Group LLC, 77 A.D.3d 586 [1st Dept 2010]). The outstanding depositions were of defendants' own witnesses and there was no evidence that any nonparty discovery had been sought (see Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 44 A.D.3d 557 [1st Dept 2007]).
Defendants' argument that all or some of the injuries pled were not caused by the subject accident is not an issue of liability, but rather an issue of damages, which remains unresolved (see Gramigna v Morse Diesel, 210 A.D.2d 115 [1st Dept 1994]; see also Doyle v Sithe/Independence Power Partners, 296 A.D.2d 847 [4th Dept 2002]). The dispute concerning damages does not raise credibility issues relative to the issue of liability where plaintiff gave no inconsistent version of how the accident occurred nor is there any evidence contradicting the allegation that the scaffold collapsed (compare Smigielski v Teachers Ins. & Annuity Assn. of Am., 137 A.D.3d 676 [1st Dept 2016]).