Doan v. Aiken & McGlauklin, Inc.

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court did not abuse its discretion in granting the motion of plaintiffs for leave to renew their prior motion for partial summary judgment (see, Matter of Kennedy v Coughlin, 172 AD2d 666; Karlin v Bridges, 172 AD2d 644, 645). We conclude, however, that the court erred upon renewal in granting plaintiffs’ motion for partial summary judgment on the Labor Law § 240 (1) claim. Cary L. Doan (plaintiff) alleged that, while working on a construction site owned by defendant Quaker Hollow, Ltd. (Quaker), he was injured when the stilts he was wearing hit a nail on the floor, causing him to fall. There were no witnesses to the accident. Although a co-worker stated that, shortly after the accident, he observed plaintiff still wearing stilts, that statement is contradicted by the testimony of plaintiff that, after the accident, he removed the stilts and went to another room to talk to his co-worker. Moreover, in its bill of particulars and amended bill of particulars, Quaker does not concede that plaintiff was injured when he fell while working on stilts. Because there are questions of fact with respect to the occurrence of the accident, partial summary judgment should have been denied (see, Carlos v Rochester Gen. Hosp., 163 AD2d 894; Donohue v Elite Assocs., 159 AD2d 605; Antunes v 950 Park Ave. Corp., 149 AD2d 332; Parsolano v County of Nassau, 93 AD2d 815, 817). (Appeal from Order of Supreme Court, Erie County, "WHielan, J.—Labor Law.) Present—Denman, P. J., Lawton, Wesley, Balio and Boehm, JJ.