Rosario v. Humphreys & Harding, Inc.

301 A.D.2d 406, 752 N.Y.S.2d 865, 2003 N.Y. App. Div. LEXIS 230

Opinion

—Order, Supreme Court, Bronx County (Paul Victor, J.), entered May 23, 2002, which denied defendants-appellants’ motion for summary judgment dismissing the complaint and all counterclaims and cross claims as against them, unanimously affirmed, without costs.

While summary judgment may be granted where a preclusion order relates to all aspects of the plaintiffs proof, thereby effectively preventing the plaintiff from making a case (Tirone v Staten Is. Univ. Hosp., 264 AD2d 415), here plaintiff was precluded only from testifying at trial. Inasmuch as plaintiff seeks to recover not only for negligence but also for violation of absolute liability provisions of the Labor Law, it cannot be said that plaintiff necessarily will not be able to prove his case without testifying and that defendants are entitled to judgment as a matter of law. Since defendants failed to make a prima facie showing of entitlement to judgment as a matter of law, the sufficiency of plaintiffs opposition is immaterial (Alvarez v Prospect Hosp., 68 NY2d 320, 324). Concur — Nardelli, J. P., Tom, Mazzarelli, Andrias and Saxe, JJ.