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PLAINTIFF IN A LABOR LAW 240 (1) AND 241 (6) ACTION NEED NOT SUBMIT AN AFFIDAVIT TO MAKE OUT A PRIMA FACIE CASE; THE HEARSAY STATEMENTS REFERENCING OR ATTRIBUTED TO PLAINTIFF DID NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court and granting plaintiffs’ summary judgment motion on the Labor Law 240 (1) and 241 (6) causes of action, determined: (1) plaintiff need not submit an affidavit to make out a prima facie case; and (2) defendant’s reliance on hearsay, including statements referenced in the certified medical records, did not raise a question of fact:

Plaintiffs established prima facie that defendant Choice is liable to them under Labor Law § 240(1) and Labor Law § 241(6) predicated on Industrial Code (12 NYCRR) § 23-1.7(b)(1)(i) through plaintiff Bledar Greca’s (plaintiff) testimony that he was injured while working on the fifth floor of defendant Choice’s property when a piece of wood that had been placed as a temporary path shifted, causing him to fall through an open area between beams. …

Although plaintiff’s medical records were certified, Choice [defendant] did not establish that the statements contained in them on which it relied either were germane to plaintiff’s diagnosis and treatment or are directly attributable to plaintiff … . The handwritten statement ostensibly by defendant Cekaj Construction Corp.’s principal and the affidavit by the owner of second third-party defendant Donato Plumbing Group, Inc. as to what Cekaj’s principal told him about plaintiff’s accident are both inadmissible hearsay, and do not qualify as admissions by an opposing party … . Greca v Choice Assoc. LLC, 2021 NY Slip Op 06759, First Dept 12-2-21

 

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