| McCay v J.A. Jones-GMO, LLC |
| 2010 NY Slip Op 05337 [74 AD3d 615] |
| June 17, 2010 |
| Appellate Division, First Department |
| James A. McCay, Respondent, v J.A. Jones-GMO, LLC,Defendant, and Columbia University et al., Appellants. (And a Third-Party Action.) TheTrustees of Columbia University in the City of New York et al., Second Third-PartyPlaintiffs-Appellants, v Del Savio Construction Corp., Second Third-PartyDefendant. |
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Order, Supreme Court, New York County (Paul G. Feinman, J.), entered February 26, 2010,which, upon granting plaintiff's motion for reargument, granted plaintiff's motion for partialsummary judgment on the issue of defendants-appellants' liability under Labor Law § 240(1), unanimously affirmed, without costs.
Plaintiff's testimony that he was injured when bricks falling from above caused him to stepoff the plywood platform on which he was carrying a bundle of steel rebar beams, and into a holethat was approximately six feet deep and four to five feet wide, suffices to show that his injurieswere caused by an elevation-related risk. For purposes of section 240 (1), it does not availdefendants to argue that the accident was caused by the falling bricks (see Gallagher v New York Post, 14NY3d 83, 86 [2010] [worker propelled into uncovered hole when blade of his saw jammed];Joyce v Rumsey Realty Corp., 17 NY2d 118, 122-123 [1966]). The unsworn hospitalreport on which defendants rely was improperly submitted for the first time in opposition toplaintiff's motion to reargue (see Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 989[1988]). In any event, the report, which stated that plaintiff was carrying a heavy object at thetime of his [*2]accident, does not conflict with plaintiff's accountthat he fell into a hole. We decline plaintiff's request to search the record for the purpose ofgranting him summary judgment on his Labor Law § 241 (6) claim, which, although asubject of his prior motion for summary judgment, was not a subject of his motion forreargument. Concur—Tom, J.P., Friedman, McGuire, Acosta and RomÁn, JJ.