Thursday, December 31, 2015

Summary judgment on the issue of liability on a Labor Law § 240(1) claim.

Practice point:  The Appellate Division reversed the motion court's denial of plaintiff's summary judgment motion, as his deposition testimony establishes that a proximate cause of his injury was the shifting of unsecured scaffold planks. Therefore, contrary to defendants' contention, plaintiff was not the sole proximate cause of the accident. In addition, defendants' recalcitrant worker defense, predicated on plaintiff's alleged entry into an area of the scaffold that had been cordoned off, is unavailing, as there is no evidence that plaintiff had been instructed on the day of the accident not to enter or use the cordoned-off area.

Student note:  The unsworn accident report relied upon by defendants to show an inconsistency in plaintiff's account of the accident is insufficient to raise an issue of fact. The report is inadmissible hearsay, and defendants provide no excuse for their failure to tender the report in admissible form. The inconsistent statement in plaintiff's hospital record as to how the accident occurred is also insufficient to raise a triable issue of fact, because it is not germane to plaintiff's diagnosis and treatment.

Case:  Kristo v. Board of Educ. of the City of N.Y., NY Slip Op 09358 (1st Dep't 2015)

Monday's issue:  Evidentiary material and motions to dismiss.