| Kamolov v BIA Group, LLC |
| 2010 NY Slip Op 09890 [79 AD3d 1101] |
| December 28, 2010 |
| Appellate Division, Second Department |
| Umit Jon Kamolov, Appellant, v BIA Group, LLC, et al.,Respondents. (And a Third-Party Action.) |
—[*1] Gallo Vitucci & Klar, LLP, New York, N.Y. (Yolanda L. Ayala of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Vaughan, J.), dated February 24, 2010, which denied hismotion for summary judgment on the issue of liability on his cause of action pursuant to LaborLaw § 240 (1).
Ordered that the order is affirmed, with costs.
The Supreme Court properly denied the plaintiff's motion for summary judgment on the issueof liability on his cause of action pursuant to Labor Law § 240 (1). In opposition to theplaintiff's prima facie showing of entitlement to judgment as a matter of law on that cause ofaction, the defendants raised a triable issue of fact as to the manner in which the accidentoccurred (see e.g. Kumar v StahluntAssoc., 3 AD3d 330 [2004]; Park v Ferragamo, 282 AD2d 588 [2001];Avendano v Sazerac, Inc., 248 AD2d 340, 341 [1998]). In this regard, the plaintiff failedto demonstrate that relevant portions of the medical records submitted by the defendants inopposition to his motion constituted inadmissible hearsay. The statements in the recordsregarding the manner in which the accident occurred were germane to the diagnosis and/ortreatment of the plaintiff, and were properly considered as business records (see Harrison vBailey, 79 AD3d 811 [2d Dept 2010]; see also Rodriguez v Piccone, 5 AD3d757, 758 [2004]; Wright v New York City Hous. Auth., 273 AD2d 378, 379 [2000];Eitner v 119 W. 71st St. Owners Corp., 253 AD2d 641, 641-642 [1998]). The plaintiff'sremaining challenges to the defendants' reliance on the business records exception to the hearsayrule were not raised in the Supreme Court (see Buckley v J.A. Jones/GMO, 38 AD3d 461, 463 [2007]) and, inany event, are without merit. Furthermore, the challenged statements set forth in the ambulancereport also were admissible on the independent ground that they constituted admissions by theplaintiff, since they are inconsistent with his current account of the accident and the statementswere satisfactorily connected to him (seegenerally Preldakaj v Alps Realty of NY Corp., 69 AD3d 455, 456-457 [2010]).
We note that the defendants' alternative contention that, even if the plaintiff's account [*2]of the accident is accepted, a triable issue of fact exists regardingwhether the plaintiff was the sole proximate cause of his own injuries, is without merit (see Valensisi v Greens at Half Hollow,LLC, 33 AD3d 693, 694 [2006]; Brandl v Ram Bldrs., Inc., 7 AD3d 655 [2004]; Justyk v Treibacher SchleifmittelCorp., 4 AD3d 882, 883 [2004]). Mastro, J.P., Rivera, Austin and Roman, JJ., concur.