No Amount of Hearsay Will Save You from Summary Judgment
In a recent decision, the Appellate Division. First Department unanimously upheld a Supreme Court, New York County decision that granted plaintiff’s motion for summary judgment on his Labor Law § 241(6) claim as predicated on violations of Industrial Code §§ 23-1.7(d) and 23-1.30.
In Oliveira v. Top Shelf Electric Corp., 2024 NY Slip Op 04523, plaintiff alleged that he slipped on debris in a dark interior stairway, which did not have exterior windows, and within which the temporary lights were off. In opposition to plaintiff’s motion, defendant submitted evidence alleging that plaintiff had given two different narrative of the subject incident, including a statement to a foreman that “lifting heavy objects” had caused the subject incident, rather than falling down an un-illuminated staircase with construction debris.
The First Department noted that the lower Court properly rejected the defendant’s attempts to defeat plaintiff’ motion for summary judgment by “relying solely on hearsay.” As to the written statement by plaintiff’s foreman, the First Department disregarded it as an unsworn statement. The First Department also disregarded a statement in an incident report that plaintiff “was moving a washing machine at the time of the incident” as hearsay. The incident report statement specifically did also not qualify as a hearsay exception because the report attributed the statement to a foreman, rather than to plaintiff himself.
The First Department also noted that any comparative negligence does not preclude a finding of summary judgment in favor of plaintiff in a Labor Law § 241(6) case without further comment.
As to the comparative negligence holding by the First Department, we can only speculate because there isn’t further comment, but this is presumably a nod that the contentions by defendant alleging that plaintiff was carrying heavy machinery down the stairs, if taken as true, would not have modified the Court’s decision.
We also have several other practice pointers here: (1) certify your medical records, (2) get your statements sworn, and (3) don’t rely only on hearsay to oppose plaintiff’s motion for summary judgment.
The Oliveira decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers. This publication is in no way intended to provide legal advice or to create an attorney-client relationship. All Rights Reserved. This article may not be reprinted without the express written permission of McCormick & Priore, P.C.
