In a recent decision, Garcia v. 122-130 E. 23rd St. LLC, the Appellate Division, First Department unanimously revered a Supreme Court, New York County decision involving a Labor Law § 240(1) claim.
Plaintiff commenced an action to recover damages for personal injuries sustained after he was directed to do taping work around lights on the ceiling of a garage at the subject work site. Plaintiff, and his coworker Jesus, were told to retrieve pieces of scaffold, which were stored a block away from the subject work site and assemble it for work. The scaffold parts they retrieved did not fit one another and were “mismatched,” not allowing for the scaffold to be erected properly to provide a safe working surface.
Plaintiff maintained he complained of the defective scaffold and was told, in effect, to “work with what he had.” Plaintiff also asserted, and defendants did not contest, that he was not provided with any additional safety equipment. While attempting to work from the scaffold, plaintiff testified that it collapsed, throwing him to the ground and causing severe injuries.
In opposing plaintiff’s summary judgment motion, defendant submitted affidavits averring that plaintiff’s supervisor instructed plaintiff not to use the scaffold, as it was not compatible with the scaffold base immediately available, and that he was to wait for the compatible pieces to be brought over to the subject site. According to the affidavits, plaintiff refused to wait, used the unsuitable base, resulting in the subject incident.
As to those affidavits, plaintiff contested their admission, arguing the unsigned documents submitted by defendants were premised on hearsay statements made by plaintiff’s onsite supervisor and noted that no admissible affidavit from that same supervisor was submitted.
With regard to the Labor Law § 240(1) claim, the First Department held that the lower Court erred in finding that plaintiff did not make a prima facie showing of entitlement to summary judgment. On the contrary, plaintiff made a prima facie showing by submitting his deposition testimony stating that the scaffold provided to him collapsed while he stood on it to perform work at an elevation, and as the First Department has previously held, testimony establishing that a safety device collapsed is sufficient for a prima facie showing on liability. See Thompson v. St. Charles Condominiums, 303 A.D.2d 152, 756 N.Y.S.2d 530 (1st Dep’t 2003).
In its ruling, the First Department acknowledged that hearsay statements may be offered in opposition to a motion for summary judgment; but held that such statements cannot defeat a motion for summary judgment where such statements are the only evidence upon which opposition is predicated. In this matter, the First Department further held that the hearsay statements were insufficient to raise a triable issue of fact as to whether Plaintiff’s conduct may be the sole proximate cause of the subject accident, warranting denial of plaintiff’s motion.
It’s important to remember that the extraordinary protections provided under Labor Law § 240(1) are just that – extraordinary and extraordinarily easy to trigger, and all that is required to make a prima facie showing, as the First Department states, is testimony establishing that a safety device collapsed.
The Garcia decision can be found here.
For additional questions, please contact Michael J. Shields and/or Philip D. Priore.
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