McCatty v. Creations Associates , 689 N.Y.S.2d 78 ( 1999 )

—Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered March 6, 1998, which, in an action for personal injuries by a laborer against a building owner, denied plaintiff’s motion for summary judgment on the issue of liability under Labor Law § 240 (1) and § 241 (6), unanimously affirmed, without costs.

The affidavit and deposition testimony that plaintiff submitted in support of the motion, which assert that he was injured by bricks that fell from the wall of an existing structure, or an opening therein, as he was cleaning out concrete on the ground floor, failed to establish a prima facie right to judgment as a matter of law under either Labor Law § 240 (1) (see, Misseritti v Mark IV Constr. Co., 86 NY2d 487, 490-491; Dias v Stahl, 256 AD2d 235; Amato v State of New York, 241 AD2d 400, 401, Iv denied 91 NY2d 805), or Labor Law § 241 (6) based on a violation of 12 NYCRR 23-1.7 (a) (1) (see, Amato v State of New York, supra, at 402). Thus, denial of the motion was required regardless of defendant’s failure to submit any admissible evidence in support of its claim that plaintiff was injured when a brick wall he was attempting to knock down with a sledge hammer fell on him (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Concur — Nardelli, J. P., Tom, Lerner, Mazzarelli and Friedman, JJ.