Wilson v. Haagen-Dazs Co., Inc., HAAGEN-DAZS
| Citation | 627 N.Y.S.2d 41,215 A.D.2d 338 |
| Decision Date | 30 May 1995 |
| Docket Number | HAAGEN-DAZS |
| Parties | Alfred WILSON, et al., Plaintiffs-Appellants, v. TheCO., INC., et al., Defendants-Respondents. CO., INC., Third-Party Plaintiff, v. TECHNICAL LIAISON CORP., Third-Party Defendant-Respondent. GERSTEN AND BEREST, INC., Fourth-Party Plaintiff, v. TECHNICAL LIAISON CORP., Fourth-Party Defendant-Respondent. |
| Court | New York Supreme Court Appellate Division |
T.D. Gallagher, for plaintiffs-appellants.
S.P. Taylor, M. Sonneborn, for defendants-respondents.
E. Elkin, for third-party defendant-respondent.
Before NARDELLI, J.P., and WILLIAMS, TOM and MAZZARELLI, JJ.
Order, Supreme Court, Bronx County (Bertram Katz, J.), entered October 24, 1994, which denied plaintiffs' motion for summary judgment and for leave to amend a bill of particulars, and order, same court and Justice, entered on or about December 13, 1994, which denied plaintiffs' motion, inter alia, to renew the prior motion, unanimously affirmed, without costs.
The IAS court properly denied the motion for partial summary judgment as to liability on the claims asserted under Labor Law §§ 240 and 241. Plaintiff was allegedly injured when the ladder upon which he had to climb in order to perform his work swung free, lurching his body sideways and wrenching his back in the process. However, plaintiff provided conflicting versions of his alleged accident. Consequently, there exists a triable issue precluding summary judgment, requiring that plaintiff's testimony be subjected to cross-examination and his credibility be assessed by the fact finder at trial (see, Colazo v. Tower 45 Assocs., Inc., 209 A.D.2d 339, 619 N.Y.S.2d 547; compare, Rodriguez v. New York City Hous. Auth., 194 A.D.2d 460, 599 N.Y.S.2d 263).
We also find that the motion for leave to amend the bill of particulars was properly denied. Given the substantial delay in seeking this relief, and the fact that the case had long been certified ready for trial, the court did not improvidently exercise its discretion by holding that plaintiffs failed to demonstrate extraordinary circumstances warranting this relief (see, Reynolds v. Towne Corp., 132 A.D.2d 952, 518 N.Y.S.2d 528, lv. denied 70 N.Y.2d 613, 524 N.Y.S.2d 431, 519 N.E.2d 342). We have considered plaintiff's other contentions and find them to be without merit.
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