| Boivin v Marrano/Marc Equity Corp. |
| 2010 NY Slip Op 09732 [79 AD3d 1750] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| Wayne A. Boivin, Respondent, v The Marrano/Marc Equity Corp.,Appellant. |
—[*1] Cellino & Barnes, P.C., Buffalo (Gregory V. Pajak of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Tracey A. Bannister, J.), enteredDecember 8, 2009 in a personal injury action. The order denied defendant's motion for summaryjudgment and granted plaintiff's cross motion for partial summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting the motion in part and dismissing the Labor Law § 200 and common-lawnegligence causes of action, and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence actionseeking damages for injuries he allegedly sustained when he fell while installing a roof on ahome that was under construction. Supreme Court properly denied that part of defendant'smotion seeking summary judgment dismissing the Labor Law § 240 (1) claim and properlygranted plaintiff's cross motion seeking partial summary judgment on liability with respect to thatclaim. Plaintiff established his entitlement to judgment as a matter of law (see Cherry v Time Warner, Inc., 66AD3d 233, 236 [2009]), and "[t]he mere fact that a fall is unwitnessed does not requiredenial of a [cross] motion for partial summary judgment [on liability] under Labor Law §240 (1)" (Abramo v Pepsi-Cola Buffalo Bottling Co., 224 AD2d 980, 981 [1996]).Plaintiff's conflicting statements concerning the precise address of the accident are insufficient toraise a triable issue of fact inasmuch as it is undisputed that defendant was the general contractorfor all of the homes under construction in the development where the accident occurred.Moreover, "all of plaintiff's statements relate a consistent and coherent version of the occurrenceof the accident" (Morris v Mark IV Constr. Co., 203 AD2d 922, 923 [1994]).
We agree with defendant, however, that the court erred in denying those parts of its motionseeking summary judgment dismissing the Labor Law § 200 and common-law negligencecauses of action. Defendant "established its entitlement to judgment as a matter of law bydemonstrating that it did not exercise supervisory control over . . . plaintiff's work[ ]and that it neither created nor had actual or constructive knowledge of the allegedly dangerouscondition on the premises . . . , and [*2]plaintiff[ ]failed to raise a triable issue of fact" (Handville v MJP Contrs., Inc., 77 AD3d 1471, 1474 [2010][internal quotation marks omitted]). We therefore modify the order accordingly.Present—Martoche, J.P., Smith, Fahey, Peradotto and Green, JJ.