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THE SCAFFOLD COLLAPSED ENTITLING PLAINTIFF TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; THE HEARSAY SUBMITTED IN OPPOSITION DID NOT DEFEAT THE MOTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this scaffold-collapse case. Plaintiff alleged he was told to assemble use the scaffold despite mismatched parts. The defendants relied on hearsay statements attributed to Sabato, plaintiff’s supervisor, to the effect that Sabato told plaintiff to wait until the correct scaffold parts were supplied. Hearsay alone will not defeat a summary judgment motion:

… [T]estimony establishing that a safety device collapsed is sufficient for a prima facie showing on liability … . * * *

Because defendants’ submissions in opposition rely entirely on Sabato’s inadmissible hearsay statements, they are insufficient to raise a triable issue of fact as to whether plaintiff’s conduct — namely, using a scaffold that he was allegedly instructed not to use – may be the sole proximate cause for his accident and therefore warrant a denial of plaintiff’s motion … . Garcia v 122-130 E. 23rd St. LLC, 2023 NY Slip Op 05096, First Dept 10-10-23

Practice Point: The collapse of a scaffold warrants summary judgment on a Labor Law 240(1) cause of action. Hearsay alone offered in opposition will not defeat the motion.

 

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