Smigielski v. Teachers Insurance & Annuity Ass'n of America

Smigielski v Teachers Ins. & Annuity Assn. of Am. (2016 NY Slip Op 02297)

Smigielski v Teachers Ins. & Annuity Assn. of Am.

2016 NY Slip Op 02297

Decided on March 29, 2016

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 March 29, 2016
Friedman, J.P., Andrias, Saxe, Richter, JJ.

637 115484/09

[*1]Andrzej Smigielski, Plaintiff-Appellant,

v

Teachers Insurance and Annuity Association of America, et al., Defendants-Respondents. [And a Third-Party Action]

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.

Barry, McTiernan & Moore, LLC, New York (Laurel A. Wedinger of counsel), for Teachers Insurance and Annuity Association of America, T-C the Colorado LLC, Equinox Holdings, Inc., and Pure 86th Street, Inc., respondents.

Gallo Vitucci Klar LLP, New York (Jessica A. Clark of counsel), for Eclipse Development Inc., respondent.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered October 16, 2014, which denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) cause of action, unanimously affirmed, without costs.

The fact that plaintiff may have been the sole witness to his accident does not preclude summary judgment in his favor

(see Verdon v Port Auth. of N.Y. & N.J., 111 AD3d 580, 581 [1st Dept 2013]; Perrone v Tishman Speyer Props., L.P., 13 AD3d 146, 147 [1st Dept 2004]). However, where a plaintiff is the sole witness to an accident, an issue of fact may exist where he or she provides inconsistent accounts of the accident (see Goreczny v 16 Ct. St. Owner LLC, 110 AD3d 465, 466 [1st Dept 2013]), his or her account of the accident is contradicted by other evidence (id.), or his or her credibility is otherwise called into question with regard to the accident (see Vargas v City of New York, 59 AD3d 261 [1st Dept 2009]).

Here, plaintiff testified that he sustained injuries when the platform of a scaffold, on which he was standing to cut a hole in the ceiling, collapsed. However, the testimony of defendant Eclipse Development Inc.'s senior project manager that plaintiff's employer did not do any ceiling work or use scaffolds and no scaffolds were present in the area where plaintiff was allegedly working at the time of the accident, raises triable issues as to whether the accident occurred as plaintiff claimed.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 29, 2016

CLERK