Olan v. Farrell Lines Inc.

• Decision Date: 20 November 1984
• Citation: 481 N.Y.S.2d 370,105 A.D.2d 653
• Parties: Ismael OLAN, Plaintiff-Respondent, v. FARRELL LINES INCORPORATED, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 370

481 N.Y.S.2d 370

105 A.D.2d 653

Ismael OLAN, Plaintiff-Respondent, v. FARRELL LINES INCORPORATED, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Nov. 20, 1984.

P.C. Matthews, New York City, for plaintiff-respondent.

B.J. Vaughan, New York City, for defendant-appellant.

Before KUPFERMAN, J.P., and SULLIVAN, ASCH, MILONAS and ALEXANDER, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County, entered October 25, 1982, which denied defendant-appellant's motion for summary judgment dismissing the complaint, is reversed, on the law, without costs, and summary judgment dismissing the complaint is granted to the defendant.

Plaintiff was an employee of defendant Farrell Lines. In 1978, while aboard ship, performing his daily maintenance chores (part of his general duties), plaintiff fell. Plaintiff testified at his EBT that he was cleaning the overhead bulkhead in a clean, dry, internal stairwell, which required that he reach above his head to reach this overhead bulkhead. He testified that the vessel rolled, causing him to lose his balance and fall, although he also admitted that the vessel was not rolling heavily at the time. After this fall (he had been on the fifth stair from the bottom), plaintiff was given some pills and Ben-Gay and he returned to work. He continued to work for the duration of the voyage and continued to clean the same stairway daily. According to the EBT, plaintiff never complained about the stairway's condition. An action was filed in May, 1979 and defendant moved for summary judgment dismissing the complaint. This motion was granted by default, but the default was reopened by the plaintiff with the defendant's consent. The motion for summary judgment was resubmitted by defendant and plaintiff's attorney submitted an attorney's affirmation in opposition. The Supreme Court denied the motion, finding issues of fact which required adjudication.

Summary judgment should be granted where there is no material issue of fact. See Friends of Animals v. Associated Fur Manufacturers, 46 N.Y.2d 1065, 416 N.Y.S.2d 790, 390 N.E.2d 298 (1979). Plaintiff's attorney, in his attorney's affirmation in opposition to the summary judgment presents no such issue. Instead, he presents conclusory allegations, e.g. should plaintiff have been told to change his manner of cleaning (wear a safety belt, use a long-handled brush). Plaintiff never said that a safety belt was needed, nor did plaintiff show...