You are here: / / PARTY ADMISSIONS WERE NOT HEARSAY AND SHOULD HAVE BEEN CONSIDERED BY SUPREME...
, ,

PARTY ADMISSIONS WERE NOT HEARSAY AND SHOULD HAVE BEEN CONSIDERED BY SUPREME COURT IN THIS LABOR LAW 240(1), 241(6), 200 ACTION; THE “PARTY-ADMISSIONS” ARGUMENT, ALTHOUGH NOT RAISED BEFORE SUPREME COURT, CAN BE CONSIDERED AND DEEMED DISPOSITIVE ON APPEAL (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined many of the causes of action in this Labor Law 240(1), 241(6) and 200 action should not have been dismissed. Plaintiff’s decedent, Rosa, was electrocuted when working on live electrical equipment. Rosa’s boss, Cuevas (the building manager), testified he told Rosa not to work on the live equipment until he returned with rubber insulation and shut down the power to the building. Decedent’s daughter, however, testified Cuevas told her Rosa had to do the work with the power on because there was an upcoming inspection. Cuevas’ statement was deemed admissible as a party admission and should have been considered by Supreme Court. The “party-admissions” argument was raised for the first time on appeal:

When “a party raises a legal issue for the first time on appeal, as long as the issue is determinative and the record on appeal is sufficient to permit review, this Court may consider the new argument” … . We may also consider this testimony in our discretion because [defendants] also relied on it in support of their summary judgment motion … . …

… [P]laintiff testified to postaccident conversations that Cuevas had with her when he visited Rosa in the hospital, when he admitted to plaintiff that Rosa had to perform the bus duct work without shutting down the electricity because of the imminently scheduled building inspection, so as not to inconvenience the tenants, and to avoid any complaints attendant to a service interruption, such as a lack of elevator service. Cuevas never denied either having those conversations with plaintiff in the hospital or making those statements…. . In any event, assuming hypothetically that these statements were inadmissible hearsay, they may still be considered as they are not the only evidence in this record that the electricity was not shut down when Rosa performed the duct work … . Rosa v 47 E. 34th St. (NY), L.P., 2022 NY Slip Op 05144, First Dept 9-13-22

Practice Point: Party admissions are not hearsay. A legal issue (here “inadmissible hearsay” versus “party admission”) raised for the first time on appeal may be considered where, as here, the record is sufficient and the issue is determinative.

 

You might also like
ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE IN THIS LABOR LAW 240(1) LADDER-FALL ACTION, DEFENDANTS RAISED TRIABLE ISSUES OF FACT BY POINTING TO INCONSISTENCIES IN PLAINTIFF’S ACCOUNT (FIRST DEPT).
NUISANCE COUNTERCLAIM BASED UPON PLAINTIFF’S PLAYING PIANO IN HER CONDOMINIUM SHOULD HAVE BEEN DISMISSED, NO SHOWING THE SOUND LEVEL WAS UNREASONABLE (FIRST DEPT).
THE BANK DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER IT VIOLATED THE SEPARATE-ENVELOPE RULE IN THIS FORECLOSURE ACTION; THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​
REPORT OF FIRE MARSHAL, WHO HAD NO INDEPENDENT RECOLLECTION OF HIS INVESTIGATION INTO THE CAUSE OF THE FIRE, WAS ADMISSIBLE PURSUANT TO THE BUSINESS RECORD EXCEPTION TO THE HEARSAY RULE, COURT SHOULD NOT HAVE CONSIDERED A NEW THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).
PLAINTIFFS-PARENTS’ CAUSE OF ACTION FOR LOSS OF THEIR INJURED DAUGHTER’S SERVICES SHOULD HAVE BEEN DISMISSED; THE PARENTS DEMONSTRATED ONLY THAT THEIR DAUGHTER PERFORMED SERVICES IN HER EMPLOYMENT AT THE COMPANIES OWNED BY THE PARENTS (FIRST DEPT).
PROPERTY OWNERS WERE AWARE THE SIDEWALK IN FRONT OF THE RESTAURANT HAD BEEN HOSED DOWN BY RESTAURANT EMPLOYEES ON A COLD DAY; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT IN THIS ICY-SIDEWALK SLIP AND FALL CASE (FIRST DEPT).
ALTHOUGH PLAINTIFF’S LANYARD WAS UNHOOKED AT THE TIME HE FELL, THERE WAS A QUESTION OF FACT WHETHER THE SCAFFOLD PROVIDED A PROPER WAY TO TIE OFF THE LANYARD 1ST DEPT.
BOTH A FEDERAL HOBBS ACT ROBBERY CONVICTION AND A NORTH CAROLINA BREAKING AND ENTERING CONVICTION ARE EQUIVALENT TO NEW YORK FELONIES; DEFENDANT PROPERLY SENTENCED AS A SECOND FELONY DRUG OFFENDER (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE FAMILY COURT JUDGE HAD REPRESENTED MOTHER IN A RELATED CUSTODY MATTER YEARS... A LATE MOTION FOR SUMMARY JUDGMENT SHOULD BE ALLOWED WHERE, AS HERE, DISCOVERY...