Brielmeier v. Legacy Yards Tenant, LLC

Brielmeier v Legacy Yards Tenant, LLC (2021 NY Slip Op 00903)

Brielmeier v Legacy Yards Tenant, LLC

2021 NY Slip Op 00903

Decided on February 11, 2021

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 and Entered: February 11, 2021
Before: Acosta, P.J., Kapnick, Singh, Mendez, JJ.

Index No. 151983/16 Appeal No. 13100 Case No. 2020-02603

[*1]Thomas Brielmeier, Plaintiff-Respondent,

v

Legacy Yards Tenant, LLC, Defendant, Hudson Yards Construction LLC et al., Defendants-Appellants.

London Fischer LLP, New York (Brian P. McLaughlin of counsel), for appellants.

Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for respondent.

Order, Supreme Court, New York County (Robert D. Kalish, J.), entered October 21, 2019, which, to the extent appealed from, denied defendants' motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims, unanimously affirmed, without costs.

The motion court correctly determined that plaintiff's inconsistent statements about how he was injured do not compel dismissal of his Labor Law §§ 240(1) and 241(6) claims. Rather they present issues of fact to be resolved by a jury according to their credibility determinations (see e.g. Buckley v J.A. Jones/GMO, 38 AD3d 461 [1st

Dept 2007]; Maldonado v Townsend Ave. Enters., Ltd. Partnership, 294 AD2d 207 [1st Dept 2002]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 11, 2021