Becovic v. Scoria & Diana Associates, Inc.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Bungs County (Douglass, J.), dated July 9, 2003, as denied that branch of their motion which was for summary judgment on 389 their cause of action alleging a violation of Labor Law § 240 (1) and the third-party defendants Colony Insurance Company, Colony Group, and Front Royal Companies separately appeal from stated portions of the same order. Ordered that the appeal by the third-party defendants Colony Insurance Company, Colony Group, and Front Royal Companies is dismissed for failure to perfect the same in accordance with the rules of this Court (see 22 NYCRR 670.8 [c], [e]); and it is further; Ordered that the order is affirmed insofar as reviewed, with costs. The Supreme Court properly denied that branch of the plaintiffs’ motion which was for summary judgment on their cause of action alleging a violation of Labor Law § 240 (1). The affidavit of the general contractor’s project manager, as well as inconsistencies in the injured plaintiff’s deposition testimony, raised a triable issue of fact as to how the accident occurred, which precluded summary judgment (see Reborchick v Broadway Mall Props., Inc., 10 AD3d 713 [2004]; Aslam v Weiss, 308 AD2d 426 [2003]; Anspach v Miller Bluff’s Constr. Corp., 280 AD2d 564 [2001]; Russell v Rensselaer Polytechnic Inst., 160 AD2d 1215 [1990]; Donohue v Elite Assoc., 159 AD2d 605 [1990]). Florio, J.P., Krausman, Cozier and Rivera, JJ., concur.