ALTHOUGH PLAINTIFF FELL THROUGH THE FLOOR OF THE BUILDING UNDER RENOVATION WHEN HE WENT IN TO GET A TOOL FOR HIS WORK ON AN ADJACENT BUILDING, HE WAS PERFORMING DUTIES ANCILLARY TO THE CONSTRUCTION WORK AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION; HEARSAY EVIDENCE IN THE MEDICAL RECORDS WAS NOT ENOUGH TO RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was hired to remove carpet from a building adjacent to the building to the building undergoing renovation (the carpet had been damaged by flooding in the building being renovated), Plaintiff went inside the building under renovation to get a tool when he fell through a temporary plywood floor: The court noted that opposition to a summary judgment motion based solely on hearsay does not raise a question of fact:

… [T]he plaintiff was assigned the task of removing damaged carpeting and flooring from a property adjacent to the subject premises, which allegedly had flooded as a result of renovations to the subject premises. When the plaintiff went inside the subject premises to get a tool, he fell through a temporary plywood floor, which consisted of several pieces of plywood placed on top of beams. …

… [P]laintiff established, prima facie, that he was at the subject premises, which was a construction site, in order to perform duties ancillary to the construction work, which was covered by Labor Law § 240(1) … . Further, the plaintiff established that he was exposed to an elevation-related risk for which no safety devices were provided, and that such failure was a proximate cause of his injuries … . In opposition, the defendant failed to raise a triable issue of fact as to whether the plaintiff was engaged in an enumerated activity, whether the plaintiff was recalcitrant in deliberately failing to use available safety devices, or whether his actions were the sole proximate cause of his injuries … . There is no evidence that anyone instructed the plaintiff that he was not to enter the subject premises or that he was to obtain the tools he needed to work on the adjacent property from somewhere else … . To the extent that the defendant contends that the plaintiff’s uncertified hospital records raise a triable issue of fact as how the accident occurred, “[w]hile hearsay may be considered in opposition to a motion for summary judgment, it is insufficient to raise a triable issue of fact where, as here, it is the only evidence upon which opposition to the motion was predicated” … . Estrella v ZRHLE Holdings, LLC, 2023 NY Slip Op 03848, Second Dept 7-19-23

Practice Point: Plaintiff was hired to remove carpet from a building adjacent to the building under renovation because flooding caused by the renovation damaged the carpet. Plaintiff fell through the floor of the building under renovation when he went in to get a tool. Plaintiff was doing work ancillary to the renovation and was therefore covered by Labor Law 240(1).

Practice Point: Hearsay standing alone will not raise a question of fact at the summary judgment stage.