Taylor v One Bryant Park, LLC

Taylor v One Bryant Park, LLC 2012 NY Slip Op 02427 Decided on April 3, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 3, 2012
Friedman, J.P., DeGrasse, Freedman, Abdus-Salaam, JJ.
7247 103976/08

[*1]Sherard Taylor, Plaintiff-Appellant, ——

v

One Bryant Park, LLC, et al., Defendants-Respondents.




Sacks and Sacks, LLP, New York (Scott N. Singer of counsel),
for appellant.
Fabiani Cohen & Hall, LLP, New York (Michele V. Ficarra of
counsel), for respondents.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered June 17, 2011, which denied plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240(1) cause of action, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff was injured when the A-frame ladder he was ascending fell over. Plaintiff testified that he placed the ladder about six inches from a stack of metal studs and that as he was ascending the ladder, he heard a noise, which was the sound of the metal studs sliding against the ladder, causing it to fall. Under these circumstances, plaintiff established a violation of Labor Law § 240(1) (see Bruce v 182 Main St. Realty Corp., 83 AD3d 433, 437 [2011]; Schultze v 585 W. 214th St. Owners Corp., 228 AD2d 381 [1996]).

Although summary judgment is not warranted where "credible evidence reveals differing versions of the accident" (Ellerbe v Port Auth. of N.Y. & N.J., 91 AD3d 441, 442 [2012]), the evidence upon which defendants rely is neither credible, nor admissible. The workers' compensation C-2 report is not signed or authenticated, and it is not conclusively clear who created the report or where that person acquired the information (see Zuluaga v P.P.C. Const., LLC, 45 AD3d 479 [2007]). Assuming that the site medic listed on the report completed it, an affidavit from that same medic gives a different version of the accident from that listed on the C-2. The affidavit does not address the inconsistency, and is also not notarized. "While hearsay statements may be used to oppose a summary judgment motion, such evidence is insufficient to warrant a denial of the motion where [as here] it is the only evidence submitted in opposition" (see Rivera v GT Acquisition 1 Corp., 72 AD3d 525, 526 [2010]).

Moreover, the record establishes plaintiff was not the sole proximate cause of his injuries [*2](see e.g. Clarke v Morgan Contr. Corp., 60 AD3d 523 [2009]). There is a lack of evidence that plaintiff was aware that the stacked pile of studs was not secured when he placed the ladder near it.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 3, 2012

CLERK