Smigielski v. Teachers Ins. & Annuity Ass'n of Am.

• Decision Date: 29 March 2016
• Docket Number: 637, 115484/09.
• Parties: Andrzej SMIGIELSKI, Plaintiff–Appellant, v. TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, et al., Defendants–Respondents. [And a Third–Party Action].
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 676

29 N.Y.S.3d 272

2016 N.Y. Slip Op. 02297

Andrzej SMIGIELSKI, Plaintiff–Appellant,

v. TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, et al., Defendants–Respondents.[And a Third–Party Action].

637, 115484/09.

Supreme Court, Appellate Division, First Department, New York.

March 29, 2016.

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.

FRIEDMAN, J.P., ANDRIAS, SAXE, RICHTER, JJ.

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 A.D.3d 580, 581, 977 N.Y.S.2d 4 [1st Dept.2013] ; Perrone v. Tishman Speyer Props., L.P., 13 A.D.3d 146, 147, 787 N.Y.S.2d 230 [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 A.D.3d 465, 466, 973 N.Y.S.2d 54 [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 A.D.3d 261, 873 N.Y.S.2d 295 [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.