Opinion
July 15, 1985
Appeal from the Supreme Court, Nassau County (Balletta, J.).
Judgment dated February 23, 1984 affirmed and order dated July 19, 1983 affirmed, insofar as appealed from, without costs or disbursements.
Special Term was correct in granting the motion of the fourth-party defendant Grammas for summary judgment since the opposition papers of the fourth-party plaintiffs MCT and Melville, consisting solely of an attorney's affidavit, were inadequate to withstand such a motion. Neither did the trial court err in refusing to permit MCT and Melville to call a certain alleged eyewitness to testify at trial, where they had failed to give notice of that witness despite a court rule to that effect, and could not explain their failure to do so, despite the claim of surprise by the parties most affected. We have considered the other contentions raised by MCT and Melville and find them to be without merit.
Plaintiffs were not entitled to judgment during trial as a matter of law under Labor Law § 240 (1) because plaintiff William Fiore was injured in a fall while walking up a stairway, and not while working on an unsafe scaffolding or other similar structure, as is contemplated by that statute. Brown, J.P., O'Connor, Weinstein and Rubin, JJ., concur.