Russo v. Herbert Construction Co.

272 A.D.2d 193, 708 N.Y.S.2d 291, 2000 N.Y. App. Div. LEXIS 5675

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered October 8, 1999, which, to the extent appealable, denied third-party defendants’ motion and defendant’s cross-motion for renewal of plaintiff’s previously granted motion for partial summary judgment upon his Labor Law § 240 (1) cause of action, unanimously modified, on the law and in the exercise of discretion, to grant the motions for renewal, to deny plaintiffs motion for partial summary judgment, and otherwise affirmed, without costs.

It is undisputed that plaintiff failed to complete service of all motion papers on third-party defendant Sorbara but that, despite this procedural infirmity, the IAS Court nonetheless proceeded to grant plaintiff partial summary judgment on liability. The motions to renew should have been granted since Sorbara was a party entitled to service of all motion papers (CPLR 2103 [e]). The affidavit submitted by the third-party defendant disputes the severity of plaintiff’s alleged injuries, calls into question whether or not a violation of the Labor Law caused the accident and creates a disputed issue of material fact requiring the denial of plaintiff’s motion for partial summary judgment. Concur — Sullivan, P. J., Rosenberger, Mazzarelli, Buckley and Friedman, JJ.