Hearsay, Although Admissible, Will Not Alone Raise a Triable Issue of Fact/A “Contractor” (Within the Meaning of Labor Law 240 (1)) Need Only Have the Authority to Control the Work—It Need Not Actually Exercise that Authority

The Second Department determined summary judgment was properly granted to the plaintiff for his Labor Law 240 (1) cause of action. A one-ton concrete plank fell from a jack onto plaintiff’s hand.  The court noted that the hearsay submitted by the defendant, claiming that plaintiff was injured when he continued to work after being ordered to stop, was not sufficient to defeat plaintiff’s summary judgment motion.  Hearsay is admissible in this context but hearsay alone will not suffice to raise a triable issue of fact. The court also found that the defendant was a contractor within the meaning of Labor Law 240 (1).  To meet the definition, the contractor must have the authority to enforce safety measures and hire responsible subcontractors, but need not have exercised that authority:

“Although hearsay evidence may be considered in opposition to a motion for summary judgment, such evidence alone is not sufficient to defeat the motion” … .

… “A party which has the authority to enforce safety standards and choose responsible subcontractors is considered a contractor under Labor Law § 240(1)” … . [Defendant’s] status as a contractor under Labor Law § 240(1) is dependent upon whether it had the authority to exercise control over the work, not whether it actually exercised that right … . Guanopatin v Flushing Acquisition Holdings, LLC, 2015 NY Slip Op 02933, 2nd Dept 4-8-15