LARGOTTA v. RECIFE REALTY COMPANY

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Supreme Court, Appellate Division, First Department, New York.

Don LARGOTTA, et al., Plaintiffs-Appellants, v. RECIFE REALTY COMPANY, N.V., et al., Defendants-Respondents.

RODNEY COMPANY, N.V., etc., Third-Party Plaintiff-Respondent, v. McCANN, INC., et al., Third-Party Defendants-Respondents.

Decided: October 29, 1998

Before LERNER, P.J., MILONAS, ELLERIN, RUBIN and WILLIAMS, JJ. Arnold E. DiJoseph, III, for Plaintiffs-Appellants. Neil L. Fishman, Deborah F. Peters, Lisa M. Comeu, for Defendants-Respondents. Deborah F. Peters, for Third-Party Plaintiff-Respondent. Lisa M. Comeu, Jerold Goldstein, for Third-Party Defendants-Respondents.

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 A.D.2d 904, 450 N.Y.S.2d 596;  Schanberg v. State of New York, 30 A.D.2d 712, 291 N.Y.S.2d 35), 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 A.D.2d 540, 541, 444 N.Y.S.2d 668).

MEMORANDUM DECISION.