A worker was leveling pre-cast concrete planks as part of the construction of a seven-story building in Brooklyn. He was injured when a concrete plank that was being raised by a jack, fell onto one of his hands. The plank that fell on the worker weighed approximately 2,000 pounds.
The injured man sued the owner and the general contractor to recover damages for sustained injuries, asserting violations of Labor Law §§ 200, 240(1), and 241(6).
Following discovery, the plaintiff worker moved for summary judgment on the issue of defendants’ liability under Labor Law § 240(1), asserting that the jack used to lift the concrete plank was not a proper device to protect him from the elevation-related hazard, and that the plank should have been secured while he was performing the task of leveling the planks. The lower court granted the plaintiff's motion. Defendants appealed.
On appeal, the Second Department affirmed the lower court’s decision. The Second Department held that plaintiff established his entitlement to summary judgment by demonstrating that he was engaged in covered work under the statute and that his injuries were proximately caused by “the absence or inadequacy of a safety device of the kind enumerated in the statute.”
On the contrary, the Second Department held that defendants failed to raise a triable issue of fact as to whether the plaintiff's conduct was the sole proximate cause of the accident. Defendants argued that plaintiff sustained injuries solely due to his actions. In support of this argument, defendants submitted a written statement from the plaintiff's employer, wherein he indicated that his investigation of the accident revealed that the plaintiff failed to follow the instruction of his foreman to stop working, and instead continued to raise the jack to its maximum level in contravention of the foreman's instructions.
However, the Second Department held that the statement was insufficient to raise a triable issue of fact as to whether the plaintiff's actions were the sole proximate cause of the accident, because the employer’s written statement was unsworn and not in admissible form. Moreover, the Court added that the employer’s deposition statement constituted hearsay inasmuch as he was merely recounting what he learned from interviewing the plaintiff's foreman, who did not witness the accident. The Second Department pointed out that although hearsay evidence may be considered in opposition to a motion for summary judgment, such evidence alone is not sufficient to defeat the motion. Since the defendants failed to submit any other admissible evidence in opposition to the plaintiff's motion, they failed to raise a
triable issue of fact as to whether the plaintiff's alleged failure to follow his foreman's instructions was the sole proximate cause of his injuries.
Further, the Second Department held that plaintiff established that the sued contractor was the general contractor on this construction project within the meaning of Labor Law § 240(1), because it had the authority to enforce safety standards and choose responsible subcontractors. The Second Department held that under Labor Law § 240(1), a defendant is deemed as a general contractor if it had the authority to exercise control over the work, not whether it actually exercised that right. Moreover, defendant’s managing partner testified at his deposition that defendant was the general contractor and contracted with the plaintiff's employer and other subcontractors to perform the construction work, and that both the managing partner and another defendant’s partner were present at the work site at various times.
Accordingly, the Second Department upheld the lower court’s decision granting plaintiff summary judgment pursuant to Labor Law § 240(1).