Heath v. County of Orange

273 A.D.2d 274, 709 N.Y.S.2d 847, 2000 N.Y. App. Div. LEXIS 6458

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated December 13, 1999, which denied his motion for partial summary judgment on the issue of liability on the first cause of action which was to recover damages for a violation of Labor Law § 240 (1).

Ordered that the order is affirmed, with costs.

Contrary to the plaintiff’s contention, the Supreme Court properly denied his motion for partial summary judgment on the issue of liability on the first cause of action which was to recover damages for a violation of Labor Law § 240 (1). The plaintiffs evidentiary submissions, which consisted primarily of his testimony at the hearing held pursuant to General Municipal Law § 50-h, were insufficient to establish the manner in which the accident occurred and how the plaintiffs injuries were sustained. Thus it cannot be determined, as a matter of law, that the plaintiff’s injuries were caused by a gravity-related accident within the intended scope of Labor Law § 240 (1) (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Rocovich v Consolidated Edison Co., 78 NY2d 509). Moreover, since the plaintiff moved for summary judgment before the defendant had an opportunity to conduct any discovery, under the circumstances of this case, summary judgment would be premature at this point (see, CPLR 3212 [f|; Hoxha v City of New York, 265 AD2d 379). Santucci, J. P., Altman, Krausman and Feuerstein, JJ., concur.