Pereira v. A. D. Herman Construction Co.

Birns, J. P., and Lynch, J.,

concurring in part and dissenting in part in a memorandum by Lynch, J.: We dissent in part and would reverse the grant of summary judgment to the plaintiff on the issue of liability and the judgment after a jury verdict on the issue of damages and would remand for a new trial on the issues of liability and damages. In this action arising from section 240 of the Labor Law, the only evidence of the happening of the accident presented on the motion for summary judgment was the affidavit of the plaintiff who, without elaboration, stated that "a 2 X 4 timber cross…