Mendoza v. Highpoint Associates, IX, LLC

Tom, J.P. (dissenting in part).

I concur with Justice Acosta to the extent that the preclusion order requires denial of defendant’s motion. Because defendant is barred from offering evidence on the issue of liability, it is unable to demonstrate its prima facie entitlement to summary judgment. Accordingly, it is unnecessary to consider the merits.

McGuire and Freedman, JJ., concur with Renwick, J.; Acosta, J., concurs in part and dissents in part in a separate opinion; Tom, J.P., dissents in part in a separate opinion.

Order, Supreme Court, Bronx County, entered on or about April 12, 2010, modified, on the law, to the extent of granting defendant summary judgment on plaintiffs Labor Law § 241 (6) claim, and otherwise affirmed, without costs.