| Madalinski v Structure-Tone, Inc. |
| 2008 NY Slip Op 00238 [47 AD3d 687] |
| January 15, 2008 |
| Appellate Division, Second Department |
| Kazimierz Madalinski, Appellant, v Structure-Tone, Inc., etal., Respondents. |
—[*1] Cozen O'Connor, New York, N.Y. (Jason L. Beckerman and Jed M. Weiss of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Dabiri, J.), dated June 9, 2006, which denied his motion forsummary 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 forsummary 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 whenhe turned on a high-pressure water hose, and the pressure of the water caused him to fall off ascaffold. The scaffold, which the plaintiff had been directed to use, had no side rails, and no otherprotective device was provided to the plaintiff to prevent him from falling. The plaintiff's proofwas sufficient to establish that he was engaged in an activity covered under Labor Law §240 (1) (see Rivers v Sauter, 26 NY2d 260, 263 [1970]; Tylman v School Constr. Auth., 3AD3d 488, 489 [2004]; cf. Diaz v Applied Digital Data Sys., 300 AD2d 533, 535[2002]), and that the failure to provide proper protection constituted a proximate cause of hisinjuries (see Vergara v SS 133 W. 21,LLC, 21 AD3d 279, 280 [2005]; Podbielski v KMO-361 Realty Assoc., 294AD2d 552, 553-554 [2002]; Lightfoot v State of New York, 245 AD2d 488, 489 [1997];Bellafiore v L & K Holding Corp., 244 AD2d 443, 443-444 [1997]).[*2]
The defendants failed to submit evidence in admissibleform to rebut this prima facie showing (see Zuckerman v City of New York, 49 NY2d557 [1980]). The deposition testimony of the senior project manager and the safety director of thedefendant Structure-Tone, Inc., relied upon by the defendants in opposition to the plaintiff'smotion, revealed that neither of these two witnesses had personal knowledge of the facts of theaccident, or the condition of the scaffold at the time of the accident. Their statements regardingthe accident and the scaffold's condition were based on inadmissible hearsay, surmise, andconjecture, and were of no probative value (see Gelesko v Levy, 37 AD3d 528 [2007]; Bellafiore v L & KHolding Corp., 244 AD2d at 444). The respective accident reports provided byStructure-Tone, Inc., the plaintiff's employer, and the shop steward were not admissible becausethey did not qualify as business records (see CPLR 4518 [a]). Accordingly, the plaintiff'smotion for summary judgment on the issue of liability on his claims pursuant to Labor Law§ 240 (1) should have been granted. Lifson, J.P., Dillon, Covello and McCarthy, JJ.,concur.