| Coates v Corporation of Presiding Bishop of Church of Jesus Christ ofLatter-Day Sts. |
| 2008 NY Slip Op 09020 [56 AD3d 599] |
| November 18, 2008 |
| Appellate Division, Second Department |
| Brian Coates, Appellant, v Corporation of the PresidingBishop of the Church of Jesus Christ of Latter-Day Saints,Respondent. |
—[*1] Jeffrey S. Shein, Syosset, N.Y. (Charles R. Strugatz of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated May31, 2007, as granted that branch of the defendant's motion which was for summary judgmentdismissing the cause of action pursuant to Labor Law § 240 (1) and denied, as untimely,his cross motion for summary judgment on the issue of liability on that cause of action.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendant's motion which was for summary judgment dismissing the cause ofaction pursuant to Labor Law § 240 (1) and substituting therefor a provision denying thatbranch of the motion; as so modified the order is affirmed insofar as appealed from, with costs tothe plaintiff.
Under the circumstances presented in this case, it was error for the Supreme Court to grantsummary judgment to the defendant dismissing the plaintiff's cause of action pursuant to LaborLaw § 240 (1). Questions of fact exist as to whether the construction of the wall fromwhich the plaintiff fell was completed at the time the plaintiff conducted his inspection (seePrats v Port Auth. of N.Y. & N.J., 100 NY2d 878 [2003]) and, if so, whether the plaintiffperformed that inspection in an unnecessarily risky manner which constituted the sole proximatecause of his accident (see e.g. Robinson v East Med. Ctr., LP, 6 NY3d 550 [2006]).However, the denial, as untimely, of the plaintiff's cross motion for summary judgment wasproper (see CPLR 3212 [a]; Brill v City of New York, 2 [*2]NY3d 648 [2004]). Mastro, J.P., Florio, Dickerson and Belen, JJ.,concur.