Gniewek v. Consolidated Edison Co.

Citation271 A.D.2d 643,707 N.Y.S.2d 871
CourtNew York Supreme Court Appellate Division
Decision Date24 April 2000
PartiesGERARD GNIEWEK, Appellant,<BR>v.<BR>CONSOLIDATED EDISON CO., Respondent.

Bracken, J. P., Ritter, Krausman and Smith, JJ., concur.

Ordered that the order is affirmed, with costs.

It is well established that summary judgment will be granted only if there are no triable issues of fact (see, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Issue finding, rather than issue determination, is the key to summary judgment (see, Krupp v Aetna Life & Cas. Co., 103 AD2d 252, 261). The court should refrain from making credibility determinations (see, Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 341), and the papers should be scrutinized carefully in the light most favorable to the party opposing the motion (see, Robinson v Strong Mem. Hosp., 98 AD2d 976). Contrary to the plaintiff's arguments, the court properly determined that there was a triable issue of fact as to whether he was a "recalcitrant worker" for purposes of Labor Law § 240 (1) (see, Watso v Metropolitan Life Ins. Co., 228 AD2d 883; Hickey v Perry & Sons, 223 AD2d 799; Ortega v Catamount Constr. Corp., 226 AD2d 154). Similarly, there are questions of fact as to the plaintiff's comparative negligence for purposes of Labor Law § 241 (6) (see, Drago v New York City Tr. Auth., 227 AD2d 372, 373).

To continue reading

Request your trial
41 cases
  • Albericci v. Port Auth. of N.Y. & N.J.
    • United States
    • New York Supreme Court
    • March 16, 2017
    ...was a proximate cause of plaintiff's injuries, as well as questions regarding his comparative fault."]; Gniewek v. Consol. Edison Co., 271 A.D.2d 643, 644, 707 N.Y.S.2d 871 [2d Dept.2000] [Summary judgment on plaintiff's claim pursuant to Labor Law § 241(6) denied when there existed "questi......
  • Mahler v. Lewis
    • United States
    • New York Supreme Court
    • February 23, 2021
    ...865, 82 N.Y.S.3d 127, 129 [2d Dept 2018]). The court should refrain from making credibility determinations (Gniewek v Consol. Edison Co., 271 A.D.2d 643, 643, 707 N.Y.S.2d 871 [2d Dept 2000]). It is well settled that summary judgment is a drastic remedy which should not be granted when ther......
  • Moran v. Collazo-Kane
    • United States
    • New York Supreme Court
    • February 22, 2021
    ...865, 82 N.Y.S.3d 127, 129 [2d Dept 2018]). The court should refrain from making credibility determinations (Gniewek v Consol. Edison Co., 271 A.D.2d 643, 643, 707 N.Y.S.2d 871 [2d Dept 2000]). It is well settled that summary judgment is a drastic remedy which should not be granted when ther......
  • Delgado v. Didomenico
    • United States
    • New York Supreme Court
    • September 18, 2020
    ...865, 82 N.Y.S.3d 127, 129 [2d Dept 2018]). The court should refrain from making credibility determinations (Gniewek v Consol. Edison Co., 271 A.D.2d 643, 643, 707 N.Y.S.2d 871 [2d Dept 2000]). It is well settled that summary judgment is a drastic remedy which should not be granted when ther......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT