Carlos v. Rochester General Hosp.
| Decision Date | 13 July 1990 |
| Citation | 163 A.D.2d 894,558 N.Y.S.2d 417 |
| Parties | Robert CARLOS and Mary Carlos, Appellants, v. ROCHESTER GENERAL HOSPITAL, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Moran & Kufta, P.C. by James Moran, Rochester, for appellants.
Harris, Beach & Wilcox by Philip Spellane, Rochester, for respondent.
Before DILLON, P.J., and CALLAHAN, GREEN, BALIO and LOWERY, JJ.
Supreme Court properly denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) cause of action. Plaintiff alleges that, while performing repair work on defendant's power house building, he was injured when the ladder he was climbing tipped to one side and both he and the ladder fell to the ground. The accident was not witnessed. To recover under section 240(1) of the Labor Law, plaintiff must demonstrate that he was injured in a fall from an elevated work site or that he was struck by an object that fell from an elevated work site (see, Staples v. Town of Amherst, 146 A.D.2d 292, 540 N.Y.S.2d 926). Whether plaintiff fell while on the ladder or was injured in some other manner is, therefore, a critical factual issue. Because the manner in which the accident occurred is within the exclusive knowledge of the plaintiff, partial summary judgment is not appropriate (see, Parsolano v. County of Nassau, 93 A.D.2d 815, 460 N.Y.S.2d 823; Bruno v. Home Mut. Ins. Co. of Binghamton, 91 A.D.2d 1169, 459 N.Y.S.2d 136). Plaintiff's testimonial version should be subjected to cross-examination and his credibility assessed by the fact-finder after a trial (see, Castillo v. General Acc. Ins. Co. of Amer., 111 A.D.2d 112, 113, 489 N.Y.S.2d 490; Krupp v. Aetna Life & Cas. Co., 103 A.D.2d 252, 262, 479 N.Y.S.2d 992; Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 3212, C3212:19).
Order unanimously affirmed without costs.
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