| Heer v North Moore St. Devs., L.L.C. |
| 2009 NY Slip Op 03453 [61 AD3d 617] |
| April 30, 2009 |
| Appellate Division, First Department |
| Bhupinder Heer, Appellant, v North Moore StreetDevelopers, L.L.C., et al., Respondents. (And Other Actions.) |
—[*1] Hardin, Kundla, McKeon & Poletto, P.A., New York (Stephen J. Donahue of counsel), forrespondents.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or aboutOctober 15, 2008, which, insofar as appealed from as limited by the briefs, denied plaintiff'smotion for summary judgment on the issue of liability on his Labor Law § 240 (1) claim,unanimously reversed, on the law, without costs, the motion granted and the matter remanded forfurther proceedings.
The lack of witnesses to the accident and plaintiff's inability to recall how the accidenthappened notwithstanding, plaintiff submitted sufficient admissible proof to establish prima faciethat his head injury was the result of a fall from a sidewalk bridge at his work site (seee.g., Felker v Corning Inc., 90 NY2d 219, 224-225 [1997]; Angamarca v NewYork City Partnership Hous. Dev. Fund Co., Inc., 56 AD3d 264 [2008]), and it is undisputedthat plaintiff had not been provided with any safety device to properly protect him from such anelevation-related hazard. A coworker's sworn statements and a site accident report prepared bydefendant general contractor's foreman placed him on the sidewalk bridge just before theaccident occurred. Further evidence established that there was a gap of more than three feetbetween the bridge and the facade of the building and no railing on the building side of thebridge. The coworker stated that he heard plaintiff's fellow bricklayers yelling that plaintiff hadfallen backwards off the bridge. He rushed to plaintiff's aid and found plaintiff lying on theground near the building, beneath the gap. Since the record affords no basis for any conclusionother than that the bricklayers' exclamations were "made under the stress of excitement causedby an external event, and not the product of studied reflection and possible fabrication," theexclamations were admissible as excited utterances (see People v Johnson, 1 NY3d 302,306 [2003]). That plaintiff's head injury was due to a fall from a height was further corroboratedby his expert neurologist's affirmation that the type of severe head injury indicated by plaintiff'smedical records was consistent with a fall from a height. Plaintiff's coworker also stated that hereceived the only safety device distributed on the day that plaintiff fell. Defendants' speculationas to how [*2]plaintiff might otherwise have been injured failedto raise a material issue of fact on the claim. Concur—Gonzalez, P.J., Tom, Sweeny,Buckley and Acosta, JJ.