MADALINSKI v. STRUCTURE TONE INC (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Dabiri, J.), dated June 9, 2006, which denied his motion for summary judgment on the issue of liability on his claims pursuant to Labor Law § 240(1).

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability on his claims pursuant to Labor Law § 240(1) is granted.

 The plaintiff, an asbestos handler employed by a demolition subcontractor, was injured when he turned on a high-pressure water hose, and the pressure of the water caused him to fall off a scaffold.   The scaffold, which the plaintiff had been directed to use, had no side rails, and no other protective device was provided to the plaintiff to prevent him from falling.   The plaintiff's proof was sufficient to establish that he was engaged in an activity covered under Labor Law § 240(1) (see Rivers v. Sauter, 26 N.Y.2d 260, 263, 309 N.Y.S.2d 897, 258 N.E.2d 191;  Tylman v. School Constr. Auth., 3 A.D.3d 488, 489, 770 N.Y.S.2d 433;  cf. Diaz v. Applied Digital Data Sys., 300 A.D.2d 533, 535, 753 N.Y.S.2d 514), and that the failure to provide proper protection constituted a proximate cause of his injuries (see Vergara v. SS 133 W. 21, LLC, 21 A.D.3d 279, 280, 800 N.Y.S.2d 134;  Podbielski v. KMO-361 Realty Assoc., 294 A.D.2d 552, 553-554, 742 N.Y.S.2d 664;  Lightfoot v. State of New York, 245 A.D.2d 488, 489, 666 N.Y.S.2d 706;  Bellafiore v. L & K Holding Corp., 244 A.D.2d 443, 443-444, 664 N.Y.S.2d 353).

 The defendants 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 deposition testimony of the senior project manager and the safety director of the defendant Structure-Tone, Inc., relied upon by the defendants in opposition to the plaintiff's motion, revealed that neither of these two witnesses had personal knowledge of the facts of the accident, or the condition of the scaffold at the time of the accident.   Their statements regarding the accident and the scaffold's condition were based on inadmissible hearsay, surmise, and conjecture, and were of no probative value (see Gelesko v. Levy, 37 A.D.3d 528, 828 N.Y.S.2d 904;  Bellafiore v. L & K Holding Corp., 244 A.D.2d at 444, 664 N.Y.S.2d 353).   The respective accident reports provided by Structure-Tone, Inc., the plaintiff's employer, and the shop steward were not admissible because they did not qualify as business records (see CPLR 4518[a] ).   Accordingly, the plaintiff's motion for summary judgment on the issue of liability on his claims pursuant to Labor Law § 240(1) should have been granted.