DeRocha v. Old Spaghetti Warehouse, Inc.

207 A.D.2d 978, 617 N.Y.S.2d 89

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 1994
• Status: Published

Opinion

—Order unanimously reversed on the law with costs and motion granted. Memorandum: Supreme Court erred in denying plaintiff’s motion for partial summary judgment on the issue of liability under Labor Law § 240 (1). Plaintiff submitted proof in admissible form establishing both that the statute was violated and that the violation was the proximate cause of his injury (see, Bland v Manocherian, 66 NY2d 452; Howell v Rochester Inst. of Technology, 191 AD2d 1006; Allman v Ciminelli Constr. Co., 184 AD2d 1022). The fact that no one saw plaintiff fall from the scaffold does not warrant the denial of summary judgment (see, Davis v Pizzagalli Constr. Co., 186 AD2d 960, 961; Marasco v Kaplan, 177 AD2d 933). Employees of third-party defendant immediately came to plaintiff’s assistance and had the opportunity to investigate the accident and to inspect the scaffold (see, Davis v Pizzagalli Constr. Co., supra, at 961; Marasco v Kaplan, supra). Speculation concerning the cause of plaintiff’s fall, based upon inadmissible hearsay, is insufficient to create an issue of fact (see, Allman v Ciminelli Constr. Co., supra, at 1023; Place v Grand Union Co., 184 AD2d 817). (Appeal from Order of Supreme Court, Onondaga County, Murphy, J.—Labor Law § 240 [1].) Present— Denman, P. J., Green, Balio, Doerr and Boehm, JJ.