Olshewitz v City of New York

2009 NY Slip Op 01356 [59 AD3d 309]

February 24, 2009

Appellate Division, First Department

As corrected through Wednesday, April 1, 2009

Howard Olshewitz, Respondent, v City of New York et al.,Defendants, and Slattery Skanska, Inc., Appellant.

—[*1]London Fischer LLP, New York (James Walsh of counsel), for appellant.

Law Office of Donald Friedman, P.C., Brooklyn (Mitchell Gorkin of counsel), forrespondent.

Order, Supreme Court, New York County (Louis B. York, J.), entered March 26, 2008,which, to the extent appealed from, granted plaintiff partial summary judgment on his LaborLaw § 241 (6) claim, unanimously affirmed, without costs.

Plaintiff's Labor Law § 241 (6) claim is predicated on a violation of Industrial Code(12 NYCRR) § 23-1.7 (b) (1), which regulates the safeguarding of hazardous openings.Defendant-appellant argues that the court erred in granting partial summary judgment as toliability on plaintiff's section 241 (6) claim because there are triable issues of fact concerningproximate cause and comparative negligence. Plaintiff having demonstrated his entitlement tosummary judgment, appellant failed to satisfy its burden to present evidence sufficient to raise atriable issue of fact as to any of its alleged defenses (see Catarino v State of New York, 55 AD3d 467 [2008]).Concur—Gonzalez, J.P., Sweeny, Renwick and Freedman, JJ. [See 2008 NY SlipOp 30853(U).]