Largotta v. Recife Realty Co.

254 A.D.2d 225, 679 N.Y.S.2d 141, 1998 N.Y. App. Div. LEXIS 11421

Opinion

Order, Supreme Court, New York County (Carol Huff, J.), entered on or about January 9, 1998, which, insofar as appealed from, denied plaintiffs’ motion for partial summary judgment on the issue of liability under Labor Law § 240 (1), unanimously affirmed, without costs.

Issues of fact exist, including whether plaintiff’s injuries were caused by his alleged fall from an unsteady ladder or whether they resulted from his repetitive use of a shotgun nailing machine. We need not reach the question whether various reports, unsworn but arguably containing admissions against plaintiff’s interest, constituted evidence in admissible form (cf., Ferrara v Poranski, 88 AD2d 904; Schanberg v State of New York, 30 AD2d 712), because “evidence, otherwise excludable at trial, may be considered to deny a motion for summary judgment provided that this evidence does not form the sole basis for the court’s determination” (Wertheimer v New York Prop. Ins. Underwriting Assn., 85 AD2d 540, 541). Concur — Lerner, P. J., Milonas, Ellerin, Rubin and Williams, JJ.