Plaintiff, a worker at a construction site, was struck in the head by a cinder block and other debris which, he contends, was thrown from a third-floor window by a co-worker, "Brian", who, as matters developed, has never been found. In fact, plaintiff's employer alleges that he never had an employee named Brian. It is uncontroverted that no nets or safety devices were in place at the time of the accident although debris chutes were located elsewhere at the jobsite. On the other hand, no broken pieces of cinder block were found although plaintiff was cut on the head. In such circumstances, partial summary judgment on liability in this Labor Law § 240 (1) action should have been denied. There is no witness to the accident other than plaintiff. As we have noted, where the manner of the happening of the accident is within the exclusive knowledge of the plaintiff, an award of summary judgment on liability is inappropriate because the defendant should have the opportunity to subject the plaintiff's testimonial account to cross-examination and have his credibility determined by the trier of fact (Antunes v 950 Park Ave. Corp., 149 A.D.2d 332). On this record, there is, at the very least, a question of fact as to how the accident occurred.
The IAS Court properly denied the motion to compel an additional neuro-psychiatric examination of plaintiff. In so ruling, the court was only holding the parties to their written stipulation with regard to said examination.
Concur — Sullivan, J.P., Rosenberger, Wallach, Kupferman and Asch, JJ.