Opinion
February 2, 1990
Appeal from the Supreme Court, Erie County, Ricotta, J.
Present — Boomer, J.P., Green, Pine, Lawton and Davis, JJ.
Order unanimously affirmed with costs. Memorandum: Plaintiff moved for partial summary judgment on the issue of liability on his cause of action under Labor Law § 240, asserting that an accident in which he allegedly injured his knee occurred in the manner to which he testified at an examination before trial. In opposition to the motion, third-party defendant submitted the affidavit of plaintiff's foreman, who asserted that plaintiff had told him an entirely different version of how the accident occurred. There were no witnesses to the event. The court properly denied plaintiff's motion because defendant's proof raises an issue of credibility regarding plaintiff's testimony and a finder of fact could reject it entirely (see, Harkins v Felice's of Patchogue, 60 A.D.2d 880).