Franco v. Jemal
Opinion of the Court
—Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered October 29, 1999, which denied plaintiff’s motion for summary judgment on the issue of liability on his Labor Law § 240 (1) claim and granted defendants’ cross-motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, defendants’ cross-motion for summary judgment denied, plaintiff’s motion for summary judgment granted, and the complaint reinstated.
Plaintiff, a journeyman electrician, was injured while attempting to repair a rooftop central air conditioning unit. The IAS Court granted defendants’ cross-motion for summary judg
While plaintiff made out his prima facie case for section 240 (1) liability, defendants failed to raise a triable issue of fact as they offered no more than speculation as to whether the accident happened as plaintiff described. That the accident was unwitnessed presents no bar to summary judgment in favor of plaintiff. Where, as here, there is no substantiated challenge to credibility, plaintiffs motion should have been granted (see, Klein v City of New York, 89 NY2d 833, 834-835; Casabianca v Port Auth., 237 AD2d 112, 113). Concur — Mazzarelli, J. P., Andrias, Wallach, Saxe and Buckley, JJ. [As amended by unpublished order entered May 22, 2001.]
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