Boccia v. City of New York , 848 N.Y.S.2d 626 ( 2007 )

Order, Supreme Court, Bronx County, (Yvonne Gonzalez, J.), entered October 6, 2006, which denied plaintiffs motion for partial summary judgment on his cause of action under Labor Law § 240 (1), unanimously affirmed, without costs.

Summary judgment in plaintiffs favor is precluded by an issue of fact as to whether plaintiff fell off the ladder because, as plaintiff claims, it “shifted” or “slipped” due to water, mud, concrete mortar, and other debris on the ground, or because, as defendants claim, plaintiff slipped on the ladder due to “wet concrete” or “wet cement” on his boots (compare McCormack v Helmsley-Spear, Inc., 233 AD2d 203 [1996], with Cruz v Turner Constr. Co., 279 AD2d 322 [2001]). That issue is raised by the accident reports prepared by plaintiffs foreman in plaintiffs presence on the basis of information provided by plaintiff stating that plaintiff slipped on the ladder due to a wet substance on his boots (see Buckley v J.A. Jones/GMO, 38 AD3d 461 [2007]; Antenucci v Three Dogs, LLC, 41 AD3d 205, 206 [2007]). Concur—Saxe, J.P., Friedman, Sweeny, McGuire and Malone, JJ.