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Taylor v. One Bryant Park, LLC

94 A.D.3d 415 Court N.Y. App. Div. Decision date 2012-04-03 English

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p. 415
Sherard Taylor, Appellant, v One Bryant Park, LLC, et al., Respondents.
[941 NYS2d 142]

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered June 17, 2011, which denied plaintiffs motion for summary judgment on the issue of liability on his Labor Law § 240 (1) cause of action, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff was injured when the A-frame ladder he was ascending fell over. Plaintiff testified that he placed the ladder about six inches from a stack of metal studs and that as he was ascending the ladder, he heard a noise, which was the sound of the metal studs sliding against the ladder, causing it to fall. Under these circumstances, plaintiff established a violation of Labor Law § 240 (1) (see Bruce v 182 Main St. Realty Corp., 83 AD3d 433 , 437 [2011]; Schultze v 585 W. 214th St. Owners Corp., 228 AD2d 381 [1996]).

Although summary judgment is not warranted where “credible evidence reveals differing versions of the accident” (Ellerbe v Port Auth. of N.Y. & N.J., 91 AD3d 441 , 442 [2012]), the evidence upon which defendants rely is neither credible, nor admissible. The workers’ compensation C-2 report is not signed or authenticated, and it is not conclusively clear who created the report or where that person acquired the information (see Zuluaga v P.P.C. Constr., LLC, 45 AD3d 479 [2007]). Assuming

p. 416
that the site medic listed on the report completed it, an affidavit from that same medic gives a different version of the accident from that listed on the C-2. The affidavit does not address the inconsistency, and is also not notarized. “While hearsay statements may be used to oppose a summary judgment motion, such evidence is insufficient to warrant a denial of the motion where [as here] it is the only evidence submitted in opposition” (see Rivera v GT Acquisition 1 Corp., 72 AD3d 525 , 526 [2010]).

Moreover, the record establishes plaintiff was not the sole proximate cause of his injuries (see e.g. Clarke v Morgan Contr. Corp., 60 AD3d 523 [2009]). There is a lack of evidence that plaintiff was aware that the stacked pile of studs was not secured when he placed the ladder near it. Concur — Friedman, J.P., DeGrasse, Freedman and Abdus-Salaam, JJ.

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