Opinion
April 24, 2000.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Dye, J.), dated March 17, 1999, which denied his motion for partial summary judgment on the issue of liability.
Bracken, J. P., Ritter, Krausman and Smith, JJ., concur.
Ordered that the order is affirmed, with costs.
It is well established that summary judgment will be granted only if there are no triable issues of fact ( see, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404). Issue finding, rather than issue determination, is the key to summary judgment ( see, Krupp v. Aetna Life Cas. Co., 103 A.D.2d 252, 261). The court should refrain from making credibility determinations ( see, Capelin Assocs. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341), and the papers should be scrutinized carefully in the light most favorable to the party opposing the motion ( see, Robinson v. Strong Mem. Hosp., 98 A.D.2d 976). Contrary to the plaintiff's arguments, the court properly determined that there was a triable issue of fact as to whether he was a "recalcitrant worker" for purposes of Labor Law § 240 (1) ( see, Watso v. Metropolitan Life Ins. Co., 228 A.D.2d 883; Hickey v. Perry Sons, 223 A.D.2d 799; Ortega v. Catamount Constr. Corp., 226 A.D.2d 154). Similarly, there are questions of fact as to the plaintiff's comparative negligence for purposes of Labor Law § 241 (6) ( see, Drago v. New York City Tr. Auth., 227 A.D.2d 372, 373).