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Scheidt v. Toll Bros.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


February 2, 2010

WILLIAM SCHEIDT, ET AL., RESPONDENTS,
v.
TOLL BROS., INC., ET AL., APPELLANTS.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Dutchess County (Dolan, J.), entered November 6, 2008, which granted the plaintiffs' motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J.P., HOWARD MILLER, JOHN M. LEVENTHAL and CHERYL E. CHAMBERS, JJ.

(Index No. 3541/06)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) by showing that the plaintiff William Scheidt sustained an injury as a result of the defendants' failure to guard against a gravity-related risk (see Valensisi v Greens at Half Hollow, LLC, 33 AD3d 693, 695). In opposition, the defendants failed to raise a triable issue of fact. As the Supreme Court correctly determined, the questions of credibility raised by the defendants were relevant only to the issue of damages, not liability (see S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341). Accordingly, the Supreme Court properly granted the plaintiffs' motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).

RIVERA, J.P., MILLER, LEVENTHAL and CHAMBERS, JJ., concur.

20100202

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