Rodriguez v. City of New York

232 A.D.2d 621, 648 N.Y.S.2d 989, 1996 N.Y. App. Div. LEXIS 11342

Opinion

—In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Richmond County (Cusick, J.), dated October 26,1995, as granted that branch of the plaintiffs motion which was for summary judgment on his causes of action pursuant to Labor Law § 241 (6).

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff was injured in a sewer trench when he was struck by a shoring beam, which became dislodged while he was backfilling the trench. The plaintiff asserted that he was not given any time to move away or to get out of the trench before his coworker began hoisting a support panel, causing the shoring beam to become dislodged.

The defendant contends that the Supreme Court improperly granted that branch of the plaintiff’s motion which was for summary judgment on his causes of action pursuant to Labor Law § 241 (6). We disagree. Although comparative negligence is a defense to a claim asserted under Labor Law § 241 (6), the defendant failed to submit any evidentiary proof in admissible form sufficient to defeat that branch of the plaintiff’s motion. In light of our determination, we reach no other issue. Bracken, J. P., Sullivan, Altman and McGinity, JJ., concur.