Barwicki v. Friars 50th Street Garage, Inc.

288 A.D.2d 14, 732 N.Y.S.2d 8, 2001 N.Y. App. Div. LEXIS 10134

Opinion

—Order, Supreme Court, New York County (Louis York, J.), entered March 6, 2001, which denied the plaintiff’s motion for partial summary judgment as to liability upon his Labor Law § 240 claim and denied defendants’ cross motion to dismiss plaintiff’s Labor Law § 200 and common-law negligence claims, unanimously modified, on the law, to grant plaintiff’s motion for partial summary judgment, and otherwise affirmed, without costs.

Plaintiff, while repairing an elevator, slipped on some grease or oil and fell into the elevator’s shaft, thereby sustaining injury. Since it was undisputed that defendants failed to provide plaintiff with any safety device and it is plain, as a matter of law, that such failure was a cause of plaintiff’s injury, plaintiff should have been granted summary judgment as to liability upon his Labor Law § 240 (1) claim (see, Carr v Jacob Perl Assocs., 201 AD2d 296). Defendants’ cross motion for summary judgment dismissing plaintiff’s Labor Law § 200 and common-law negligence claims, however, was properly denied in view of triable questions of fact as to the source of the oily condition upon which the plaintiff slipped and whether defendants had constructive or actual notice of such condition (see, Higgins v 1790 Broadway Assocs., 261 AD2d 223, 224-225). Concur — Sullivan, P. J., Rosenberger, Tom, Wallach and Rubin, JJ.