BELLAFIORE v. HOLDING CORP (1997)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCaffrey, J.), entered March 14, 1997, which denied his motion for partial summary judgment against the defendants L & K Holding Corp. and Fleet Industries, Inc., on the issue of liability pursuant to Labor Law § 240(1).

ORDERED that the order is reversed, on the law, with one bill of costs, and the plaintiff's motion for partial summary judgment against the defendants L & K Holding Corp. and Fleet Industries, Inc., on the issue of liability pursuant to Labor Law § 240(1) is granted.

 The plaintiff had been provided with a mobile scaffold which was equipped with a control panel for moving the scaffold forward and backward.   While the plaintiff was standing on the mobile scaffold, the motor spontaneously engaged, setting the scaffold in motion and causing it to tip over and crash to the ground.   The plaintiff's affidavit and that of a co-worker who witnessed the accident constituted sufficient proof to establish a prima facie case pursuant to Labor Law § 240(1) (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127, 626 N.E.2d 912;  Anderson v. Schul/Mar Constr. Corp., 212 A.D.2d 493, 622 N.Y.S.2d 310;  Bryan v. City of New York, 206 A.D.2d 448, 614 N.Y.S.2d 554;  Birbilis v. Rapp, 205 A.D.2d 569, 613 N.Y.S.2d 414).

 The respondents failed to submit evidence in admissible form to rebut this prima facie showing (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   The statements made by Robert Bartow, the President of the defendant Fleet Industries, Inc., at an examination before trial, which were submitted by Fleet Industries, Inc., in opposition to the plaintiff's motion for partial summary judgment, did not reveal that he had personal knowledge of the facts of the accident and merely recounted what another person had told him.   Those statements constituted inadmissible hearsay (see, Eddy v. Tops Friendly Mkts., 91 A.D.2d 1203, 459 N.Y.S.2d 196, affd. 59 N.Y.2d 692, 463 N.Y.S.2d 437, 450 N.E.2d 243;  Agoglia v. Sterling Foster, 237 A.D.2d 549, 655 N.Y.S.2d 636;  Kruck v. St. John's Episcopal Hosp., 228 A.D.2d 565, 644 N.Y.S.2d 325;  Abbenante v. Tyree Co., Inc., 228 A.D.2d 529, 644 N.Y.S.2d 780) and were of no probative value (see, Halloran v. Virginia Chems., 41 N.Y.2d 386, 392, 393 N.Y.S.2d 341, 361 N.E.2d 991).

MEMORANDUM BY THE COURT.