Wikiera v. City of New York

Wikiera v City of New York (2019 NY Slip Op 06693)

Wikiera v City of New York

2019 NY Slip Op 06693

Decided on September 24, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 24, 2019
Acosta, P.J., Manzanet-Daniels, Mazzarelli, Webber, Moulton, JJ.

9897 307404/13

[*1]Jacek Wikiera, Plaintiff-Respondent,

v

The City of New York, et al., Defendants-Appellants, New York City School Construction Authority, Defendant.

Cozen O'Connor, New York (Daniel Goodstadt of counsel), for appellants.

William Schwitzer & Associates, P.C., New York (D. Allen Zachary of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about January 15, 2019, which, to the extent appealed from, denied the motion of defendants City of New York and New York City Department of Education for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Summary judgment was properly denied in this action where plaintiff was allegedly injured when he fell from a scaffold while jack-hammering stone facing. Although defendants submitted documentary evidence, including plaintiff's employer's time sheets and payroll records, indicating that plaintiff did not work at the construction site on October 15, 2012, plaintiff unwaveringly testified at deposition that he did work that day and was injured in a fall from a scaffold when its wooden planks shifted. Such evidence presents credibility issues that cannot be resolved on this motion for summary judgment (see generally S.J. Capelin Assoc. v Globe Mfg. Corp. , 34 NY2d 338, 341 [1974]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 24, 2019

CLERK