Soto v. Deco Towers Associates, LLC

Appellate Division of the Supreme Court of New York

Soto v. Deco Towers Associates, LLC

116 A.D.3d 619, 983 N.Y.S.2d 800

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 24, 2014

StatusPublished

This text of 116 A.D.3d 619 (Soto v. Deco Towers Associates, LLC) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Soto v. Deco Towers Associates, LLC, 116 A.D.3d 619, 983 N.Y.S.2d 800 (N.Y. Ct. App. 2014).

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Opinion

— Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered February 5, 2013, which, upon reargument of defendants-appellants’ (defendants) motion for summary judgment, reinstated plaintiffs common-law negligence claim, unanimously affirmed, without costs.

A court may search the record and grant relief only with respect to a claim on which summary judgment is sought (see New Hampshire Ins. Co. v MF Global, Inc., 108 AD3d 463, 467 [1st Dept 2013]). Since defendants’ summary judgment motion, addressed to plaintiffs Labor Law claims, did not seek dismissal of plaintiffs common-law negligence claim, the court, upon re-argument, properly reinstated the claim. Moreover, questions of fact exist concerning whether defendants performed the construction work and, in doing so, improperly stacked the boxes that allegedly injured plaintiff. Contrary to defendants’ contentions, plaintiff’s testimony was neither incredible as a matter of law, nor self-contradictory (see Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441 [1968]; cf. Perez v Bronx Park S. Assoc., 285 AD2d 402, 404 [1st Dept 2001], lv denied 97 NY2d 610 [2002]). Plaintiff was not required to show that defendants supervised and controlled his work, as this case [620]*620involves an allegedly dangerous condition, not the means and methods of the work (see Murphy v Columbia Univ., 4 AD3d 200, 202 [1st Dept 2004]). Concur — Sweeny, J.E, Acosta, Saxe, Manzanet-Daniels and Clark, JJ.

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— Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered February 5, 2013, which, upon reargument of defendants-appellants’ (defendants) motion for summary judgment, reinstated plaintiffs common-law negligence claim, unanimously affirmed, without costs.

A court may search the record and grant relief only with respect to a claim on which summary judgment is sought (see New Hampshire Ins. Co. v MF Global, Inc., 108 AD3d 463, 467 [1st Dept 2013]). Since defendants’ summary judgment motion, addressed to plaintiffs Labor Law claims, did not seek dismissal of plaintiffs common-law negligence claim, the court, upon re-argument, properly reinstated the claim. Moreover, questions of fact exist concerning whether defendants performed the construction work and, in doing so, improperly stacked the boxes that allegedly injured plaintiff. Contrary to defendants’ contentions, plaintiff’s testimony was neither incredible as a matter of law, nor self-contradictory (see Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441 [1968]; cf. Perez v Bronx Park S. Assoc., 285 AD2d 402, 404 [1st Dept 2001], lv denied 97 NY2d 610 [2002]). Plaintiff was not required to show that defendants supervised and controlled his work, as this case [620]*620involves an allegedly dangerous condition, not the means and methods of the work (see Murphy v Columbia Univ., 4 AD3d 200, 202 [1st Dept 2004]). Concur — Sweeny, J.E, Acosta, Saxe, Manzanet-Daniels and Clark, JJ.

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Bluebook (online)

116 A.D.3d 619, 983 N.Y.S.2d 800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soto-v-deco-towers-associates-llc-nyappdiv-2014.

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