You are here: / / SUPREME COURT HELD A HEARSAY STATEMENT ATTRIBUTED TO PLAINTIFF WAS ADMISSIBLE...
,

SUPREME COURT HELD A HEARSAY STATEMENT ATTRIBUTED TO PLAINTIFF WAS ADMISSIBLE AS AN EXCITED UTTERANCE AND RAISED A QUESTION OF FACT IN THIS LADDER-FALL CASE; THE FIRST DEPARTMENT RULED THE STATEMENT WAS NOT MADE “UNDER STRESS OF EXCITEMENT” AND WAS THEREFORE INADMISSIBLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this Labor Law 240(1) ladder-fall case should have been granted. Plaintiff demonstrated a piece of duct, which should have been secured, fell and knocked him off the ladder. The defendant alleged that plaintiff told the foreman he fell because he jumped down several rungs. That hearsay statement was admitted as an excited utterance. The First Department held the statement was not made “under stress of excitement” and should not have been admitted in evidence:

Defendant submitted the affidavit of its foreman, who averred that after the accident, plaintiff told him that he, plaintiff, fell from the ladder because he had jumped down several rungs. Supreme Court admitted this statement under the excited utterance exception to the hearsay rule, finding that it raised a triable issue of fact sufficient to defeat summary judgment. This finding was error. According to the foreman, plaintiff was taking a break and told the foreman that he felt “fine” when he made the statement. Thus, there was no evidence that plaintiff made the purported hearsay statement “under the stress of excitement” … . As defendant did not argue any other valid basis for admitting the hearsay statement, it is “insufficient to defeat summary judgment” … , and there was no other admissible evidence in opposition to plaintiff’s motion. Vivar v Citigroup Tech., Inc., 2025 NY Slip Op 02051, First Dept 4-8-25

Practice Point: Here, whether the defendant raised a question of fact in this ladder-fall case turned on whether plaintiff’s alleged statement that he fell because he “jumped down several rungs” was admissible as an excited utterance. The First Department determined the alleged hearsay statement was not made “under stress of excitement” and was inadmissible. Therefore plaintiff’s motion for summary judgment should have been granted.

 

You might also like
HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED.
THE INSTRUMENT SHOULD HAVE BEEN ADMITTED TO PROBATE AS A LOST WILL (SECOND DEPT).
Interpretation of Unambiguous Language; Doctrine of Expressio Unius est Exclusio Alterious; Criteria for Declaratory Judgment 
A PLAINTIFF FACED WITH A MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION NEED NOT SUBMIT ANY EVIDENCE OR AFFIDAVITS IN OPPOSITION BUT RATHER CAN STAND ON THE SUFFICIENCY OF THE COMPLAINT (SECOND DEPT).
THE STATUTORY PROCEDURE FOR SENTENCING A DEFENDANT AS A PERSISTENT FELONY OFFENDER WAS NOT FOLLOWED BY THE JUDGE; SENTENCE VACATED (SECOND DEPT).
PLAINTIFF PROPERLY GRANTED SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION STEMMING FROM A FALL FROM A LADDER, DEFENDANT WAS APPARENTLY LIABLE AS AN AGENT OF THE OWNER WITH AUTHORITY OVER SAFETY MEASURES (SECOND DEPT).
IN A COMPREHENSIVE OPINION WITH DETAILED DISCUSSIONS OF THE FELLOW OFFICER RULE, THE STOP OF A VEHICLE BASED ON AN OBSERVED TRAFFIC VIOLATION, THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT, AND THE VALIDITY OF AN INVENTORY SEARCH, COUNTY COURT’S DENIAL OF THE MOTION TO SUPPRESS THE COCAINE FOUND IN THE VEHICLE IS REVERSED OVER TWO CONCURRENCES AND A TWO-JUSTICE DISSENT (SECOND DEPT).
Youthful Offender Privilege Explained/Privilege Not Waived By Denial of the Act Which Was the Subject of the Youthful Offender Adjudication in Subsequent Civil Suit

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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENSE COUNSEL ALLOWED EVIDENCE PRECLUDED BY A SANDOVAL RULING TO COME IN,... THE PETITIONER DID NOT DEMONSTRATE THE CITY HAD TIMELY ACTUAL NOTICE OF THE...