SIGUENCIA v. CITY OF NEW YORK (2025)

Order, Supreme Court, New York County (Sabrina Kraus, J.), entered August 13, 2024, which, to the extent appealed from as limited by the briefs, denied defendants’ motion for summary judgment dismissing the Labor Law § 240(1) claim, unanimously affirmed, without costs.

Defendants are correct that the correction sheets submitted by plaintiff with his signed deposition transcripts should not have been considered because he failed to provide any explanation for the changes (CPLR 3116[a];  see Cataudella v. 17 John St. Assoc., LLC, 140 A.D.3d 508, 508, 35 N.Y.S.3d 304 [1st Dept. 2016]) and because they were not accompanied by a translator's affidavit (CPLR 2101[b];  see Peralta–Santos v. 350 W. 49th St. Corp., 139 A.D.3d 536, 537, 30 N.Y.S.3d 553 [1st Dept. 2016]).

Nevertheless, the court properly denied defendants’ motion for summary judgment dismissing the Labor Law § 240(1) claim because defendants failed to establish as a matter of law that plaintiff was recalcitrant or the sole proximate cause of the accident for failing to use an available hoist or pulley to transport a metal plank to a higher location.  Even if hoists and pulleys were available on site, and plaintiff was aware of them, defendants did not submit any evidence establishing that plaintiff was instructed to use them (see Gutierrez v. 451 Lexington Realty LLC, 156 A.D.3d 418, 418–419, 66 N.Y.S.3d 463 [1st Dept. 2017]).  Instead, plaintiff's testimony conflicted as to whether his foreman or a bricklayer, whom his foreman instructed him to assist, told him to bring the plank up a scaffold staircase, which was an inadequate safety device for that work.  Plaintiff's testimony regarding the instructions from his foreman and the bricklayer was not inadmissible hearsay because it was not offered for the truth of the matter asserted, but only to show that the statements were made (see DeSario v. SL Green Mgt. LLC, 105 A.D.3d 421, 422, 963 N.Y.S.2d 24 [1st Dept. 2013]).