OLIVEIRA v. TOP SHELF ELECTRIC CORP (2024)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about June 13, 2023, which granted plaintiff's motion for partial summary judgment on the Labor Law § 241(6) claim, unanimously affirmed, without costs.

The court properly granted plaintiff partial summary judgment.  Plaintiff met his burden of establishing liability based on the alleged violations of Industrial Code §§ 23–1.7(d) and 23–1.30, by submitting his testimony that he slipped on debris in a dark interior stairway without exterior windows, in which the temporary lights were off (see Capuano v. Tishman Constr. Corp., 98 A.D.3d 848, 850, 950 N.Y.S.2d 517 [1st Dept. 2012]).

The testimony of defendants' witnesses as to lighting failed to raise issues of fact precluding summary judgment.

The court properly rejected defendants' attempts to defeat a motion for summary judgment by relying solely on hearsay (see e.g. Gonzalez v. 1225 Ogden Deli Grocery Corp., 158 A.D.3d 582, 584, 71 N.Y.S.3d 473 [1st Dept. 2018];  Briggs v. 2244 Morris, L.P., 30 A.D.3d 216, 817 N.Y.S.2d 239 [1st Dept. 2006]).  Although defendants submitted a foreman's written statement attributing certain statements to plaintiff, that written statement itself was unsworn (see Gonzalez, 158 A.D.3d at 583, 71 N.Y.S.3d 473).  Defendants also fail to respond to plaintiff's assertion that this written statement should be precluded under CPLR 3126.  The statement in an incident report that plaintiff was moving a washing machine at the time of the accident is likewise hearsay.  The party admission exception to the hearsay rule is inapplicable because the report attributed that statement to a foreman rather than plaintiff.  Defendants failed to establish that the business records exception applies to that statement, in the absence of any showing that the foreman had personal knowledge of the accident (see Matter of Leon RR, 48 N.Y.2d 117, 122–123, 421 N.Y.S.2d 863, 397 N.E.2d 374 [1979]).

Any comparative negligence does not preclude partial summary judgment in favor of plaintiff under Labor Law § 241(6) (see Piedra v. 111 W. 57th Prop. Owner LLC, 219 A.D.3d 1235, 1236, 196 N.Y.S.3d 64 [1st Dept. 2023];  see generally Rodriguez v. City of New York, 31 N.Y.3d 312, 318, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018]).