| Capasso v Kleen All of Am., Inc. |
| 2007 NY Slip Op 07152 [43 AD3d 1346] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| Gary A. Capasso et al., Respondents, v Kleen All of America, Inc.,et al., Appellants. |
—[*1] Collins & Maxwell, L.L.P., Buffalo (Alan D. Voos of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), enteredDecember 13, 2006 in a personal injury action. The order granted plaintiffs' motion for partialsummary judgment and denied defendants' cross motion for partial summary judgment.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslymodified on the law by denying that part of the motion for partial summary judgment on liabilityon the Labor Law § 240 (2) claim and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this Labor Law and common-law negligence actionseeking damages for injuries sustained by Gary A. Capasso (plaintiff) when he allegedly fell froma scaffold on premises owned by defendant County of Erie (County). The County had contractedwith defendant Kleen All of America, Inc. (Kleen All) to serve as the general contractor on aconstruction project, and Kleen All had contracted with plaintiff's employer to perform asbestosremoval and demolition work.
We conclude that Supreme Court properly granted that part of plaintiffs' motion for partialsummary judgment on liability on the Labor Law § 240 (1) claim. Plaintiffs establishedthat the scaffold upon which plaintiff was standing inside the elevator shaft lacked a guardrail,that plaintiff fell from the scaffold and that he lacerated his arm during the fall (see Keefe v E& D Specialty Stands, 259 AD2d 994 [1999], lv dismissed 93 NY2d 999 [1999],lv denied 95 NY2d 761 [2000]). Thus, plaintiffs established that the scaffold "provedinadequate to shield [plaintiff] from harm directly flowing from the application of the force ofgravity" to his person (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501[1993]).
Contrary to the contention of defendants, they failed to raise a triable issue of fact sufficientto defeat that part of plaintiffs' motion on the Labor Law § 240 (1) claim. Althoughdefendants submitted an affidavit and report from one Kleen All employee and a report fromanother employee, those employees had no firsthand knowledge of the incident and hearsay [*2]generally may not be considered in opposition to a motion forsummary judgment (see generally Grasso v Angerami, 79 NY2d 813 [1991];Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). The reports do not fallwithin the business records exception to the hearsay rule (see CPLR 4518 [a]), becausethere is no indication that the employees who authored the reports had "actual knowledge of theevent recorded or [that they] received [the] information from someone within the business whohad actual knowledge and was under a 'business duty' to report the event to the maker of therecord" (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLRC4518:1; see generally Matter of Leon RR, 48 NY2d 117, 122-123 [1979]).
We reject defendants' contention that there is an issue of fact whether plaintiff fell from thescaffold. Although the admissible evidence submitted by defendants establishes that plaintiff'sfeet remained on the scaffold as plaintiff fell, we conclude that such evidence is insufficient toraise a triable issue of fact whether plaintiff actually fell from the scaffold because his fall wasarrested when a coworker standing on the floor outside the elevator shaft caught him.
We conclude, however, that the court erred in granting that part of plaintiffs' motion forpartial summary judgment on liability on the Labor Law § 240 (2) claim, and we thereforemodify the order accordingly. That statute requires scaffolds that are "more than twenty feet fromthe ground or floor" to have safety rails (id.). While plaintiffs submitted evidence that thescaffold was more than 50 feet from the bottom of the elevator shaft, they also submittedevidence that the scaffold was no more than six or seven feet from the floor of the elevator. Thus,there is an issue of fact whether Labor Law § 240 (2) was violated.
Finally, we conclude that the court properly denied those parts of defendants' cross motionfor partial summary judgment dismissing the Labor Law § 200 and common-lawnegligence claims against the County. Defendants failed to establish as a matter of law that theCounty exercised no supervisory control over the method or manner of the performance of thework (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]; Nastasi v Span, Inc., 8 AD3d1011, 1012 [2004]), that the County had no authority to control the allegedly defectivecondition of the work site (see Nastasi, 8 AD3d at 1012; Piazza v Frank L. Ciminelli Constr. Co.,Inc., 2 AD3d 1345, 1349 [2003]), or that the County had no actual or constructive noticeof the dangerous condition (see Militellov New Plan Realty Trust, 16 AD3d 1092 [2005]; Riordan v BOCES of Rochester, 4 AD3d 869, 870-871 [2004]).Present—Gorski, J.P., Smith, Centra, Fahey and Pine, JJ.