Werthner v. Chandler Square Associates , 751 N.Y.S.2d 390 ( 2002 )

In an action to recover damages for personal injuries, the defendant Chandler Square Associates appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), entered April 4, 2001, as denied that branch of its motion which was for summary judgment dismissing the plaintiffs Labor Law § 240 (1) cause of action insofar as asserted against it, and granted that branch of the plaintiffs cross motion which was for summary judgment on the issue of liability against it on that cause of action, and the defendant Chandler Square, Inc., appeals from the same order.

Ordered that the appeal by the defendant Chandler Square, Inc., is dismissed as abandoned (see 22 NYCRR 670.8 [c], [e]); and it is further,

Ordered that the order is modified by deleting the provision thereof granting that branch of the cross motion which was for summary judgment on the issue of liability against the defendant Chandler Square Associates on the Labor Law § 240 (1) cause of action and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from by the defendant Chandler Square Associates, without costs or disbursements.

The evidence presented by the plaintiff on the cross motion for summary judgment was insufficient to establish his entitlement to judgment on his Labor Law § 240 (1) cause of action as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557, 562). Therefore, that branch of the cross motion which was for summary judgment on the issue of liability against the defendant Chandler Square Associates should have been denied.

The remaining contentions of the defendant Chandler Square Associates are without merit. Florio, J.P., Smith, Krausman and Townes, JJ., concur.