Opinion
2014-04-24
Victor SOTO, Plaintiff–Respondent, v. DECO TOWERS ASSOCIATES, LLC, et al., Defendants–Appellants, John Doe, Defendant.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Louise Cherkis of counsel), for appellants. Thomas K. Miller, New York, for respondent.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Louise Cherkis of counsel), for appellants. Thomas K. Miller, New York, for respondent.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered February 5, 2013, which, upon reargument of defendants-appellants' (defendants) motion for summary judgment, reinstated plaintiff's common-law negligence claim, unanimously affirmed, without costs.
A court may search the record and grant relief only with respect to a claim on which summary judgment is sought ( see New Hampshire Ins. Co. v. MF Global, Inc., 108 A.D.3d 463, 467, 970 N.Y.S.2d 16 [1st Dept.2013] ). Since defendants' summary judgment motion, addressed to plaintiff's Labor Law claims, did not seek dismissal of plaintiff's common-law negligence claim, the court, upon reargument, properly reinstated the claim. Moreover, questions of fact exist concerning whether defendants performed the construction work and, in doing so, improperly stacked the boxes that allegedly injured plaintiff. Contrary to defendants' contentions, plaintiff's testimony was neither incredible as a matter of law, nor self-contradictory ( see Glick & Dolleck v. Tri–Pac Export Corp., 22 N.Y.2d 439, 441, 293 N.Y.S.2d 93, 239 N.E.2d 725 [1968];cf. Perez v. Bronx Park S. Assoc., 285 A.D.2d 402, 404, 728 N.Y.S.2d 33 [1st Dept.2001],lv. denied97 N.Y.2d 610, 740 N.Y.S.2d 694, 767 N.E.2d 151 [2002] ). Plaintiff was not required to show that defendants supervised and controlled his work, as this case involves an allegedly dangerous condition, not the means and methods of the work ( see Murphy v. Columbia Univ., 4 A.D.3d 200, 202, 773 N.Y.S.2d 10 [1st Dept.2004] ). SWEENY, J.P., ACOSTA, SAXE, MANZANET–DANIELS, CLARK, JJ., concur.