Defendant moves for summary judgment to dismiss this matter pursuant to CPLR
. Defendant argues there was no violation
of the industrial code to support a violation of Labor Law §241(6). In
addition, defendant argues that it did not sufficiently control claimant’s
work to give rise to a violation of Labor Law §200.
Claimant opposes the motion and argues that a sufficient issue of fact exists
to deny defendant’s motion. As part of his opposition, claimant includes
a new affidavit for himself and another witness, as well as depositions from two
Defendant made a cross-motion to exclude the affidavits and the depositions
from claimant’s motion
Claimant argues the affidavits are included to clear up and bolster facts
provided in claimant’s deposition.
The affidavits provided in claimant’s papers directly contradict portions
of the prior deposition testimony of claimant and the witness. Clearly, this
has been done to feign a factual issue to defeat defendant’s motion for
summary judgment. The Court will disregard the affidavits (Kaplan v DePetro,
51 AD3d 730). Similarly, the Court will disregard the depositions of
defendant’s witnesses from the other actions [CPLR 3117(c)].
Summary judgment is a drastic remedy which deprives a party of its day in court
and should not be granted where there is any doubt as to the existence of a
material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v
Scally, 99 AD2d 713). The Court's function is to determine if an issue
exists. In doing so, the Court must examine the proof in a light most favorable
to the party opposing the motion. Summary judgment may only be granted if
movant provides evidentiary proof in admissible form to demonstrate that there
are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d
851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the
movant has demonstrated a prima facie entitlement to summary judgment as a
matter of law, the burden shifts to the opposing party to submit evidentiary
proof in admissible form sufficient to create an issue of fact or demonstrate an
acceptable excuse for his failure to submit such proof (Alvarez v Prospect
Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope
are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77
From the evidence presented to the Court, it is clear that significant issues
of fact exist as to what “other debris” was present when claimant
stepped down and the control of the job by defendant.
Based upon the foregoing, defendant’s motion for summary judgment is
denied and defendant’s cross-motion to strike is granted.
Based upon the foregoing, defendant’s motion to dismiss and for summary
judgment is denied.
.The following papers were read and considered
on defendant’s motion: Notice of Motion for Summary Judgment dated
September 30, 2008 and filed October 1, 2008; Kenyon Affirmation in Support of
Motion for Summary Judgment with annexed Exhibits A-F dated September 30, 2008
and filed October 1, 2008; Memorandum of Law in Support of Defendant State of
New York’s Motion for Summary Judgment dated September 30, 2008 and
received October 1, 2008; Affirmation of Counsel in Opposition to the Motion for
Summary Judgment of Paul T. Hofmann, Esq. with annexed Exhibits 1-20 dated
October 30, 2008 and filed October 31, 2008; Plaintiff’s Memorandum of Law
in Opposition to Defendant’s Motion for Summary Judgment dated October 30,
2008 and received October 31, 2008.