| Merriman v Integrated Bldg. Controls, Inc. |
| 2011 NY Slip Op 04013 [84 AD3d 897] |
| May 10, 2011 |
| Appellate Division, Second Department |
| Jimmy Merriman, Respondent, v Integrated BuildingControls, Inc., et al., Appellants. |
—[*1] Ginsburg & Misk (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn], of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Queens County (Golia, J.), enteredSeptember 7, 2010, as granted the plaintiff's motion for summary judgment on the issue ofliability on the cause of action alleging a violation of Labor Law § 240 (1) and denied thatbranch of their cross motion which was for summary judgment dismissing that cause of action.
Ordered that the order is modified, on the law, by deleting the provision thereof granting theplaintiff's motion for summary judgment on the issue of liability on the cause of action alleging aviolation of Labor Law § 240 (1), and substituting therefor a provision denying the motion;as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The evidence submitted by the defendants in support of that branch of their cross motionwhich was for summary judgment dismissing the cause of action alleging a violation of LaborLaw § 240 (1) failed to eliminate all triable issues of fact as to whether the plaintiff'salleged negligence was the sole proximate cause of the subject accident (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]). Thus, the Supreme Court properly denied thatbranch of the defendants' cross motion.
The Supreme Court, however, should have also denied the plaintiff's motion for summaryjudgment on the issue of liability on the cause of action alleging a violation of Labor Law§ 240 (1). In response to the plaintiff's prima facie showing of his entitlement to judgmentas a matter of law, the defendants submitted, inter alia, a report prepared by a neurologist whoexamined the plaintiff approximately six weeks after the accident. In recounting thecircumstances of the accident, the report recited that, while descending the ladder on which hehad been working, the plaintiff "missed a step." If credited, this statement, which is inconsistentwith the account set forth in the plaintiff's affidavit in support of his motion for summaryjudgment, would support a finding that the plaintiff's alleged negligence was the sole proximatecause of his injuries (see Blake vNeighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 [2003]).
The statement in the medical report was not germane to the diagnosis or treatment of theplaintiff and, therefore, at trial, it would not be admissible for its truth under the business recordsexception [*2]to the hearsay rule (see CPLR 4518;Williams v Alexander, 309 NY 283 [1955]). Nonetheless, the requirement thatevidentiary proof be submitted in admissible form is " 'more flexible' " when applied to a partyopposing a motion for summary judgment than it is when applied to the moving party(Zuckerman v City of New York, 49 NY2d 557, 562 [1980], quoting Friends ofAnimals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]). Accordingly, "proof whichmight be inadmissible at trial may, nevertheless, be considered in opposition to a motion forsummary judgment" (Zuilkowski v Sentry Ins., 114 AD2d 453, 454 [1985]; seePhillips v Kantor & Co., 31 NY2d 307 [1972]), particularly when the inadmissible evidencedoes not provide the sole basis for the denial of summary judgment (see Phillips v Kantor &Co., 31 NY2d at 310, 315). Such proof is permissible as long as the nonmoving party is ableto " 'demonstrate acceptable excuse for his failure to meet the strict requirement of tender inadmissible form' " (Zuckerman v City of New York, 49 NY2d at 562, quoting Friendsof Animals v Associated Fur Mfrs., 46 NY2d at 1068; see Moffett v Gerardi, 75 AD3d 496, 498 [2010]).
Here, the defendants demonstrated an acceptable excuse for failing to elicit admissibleevidence from the plaintiff's treating neurologist at this stage of the proceedings. Moreover, evenwithout considering the inadmissible evidence in the neurologist's report, the plaintiff's equivocalresponses at his deposition regarding the possibility that he "missed a step" while descending theladder, as well as the defendants' potential ability to present the evidence contained in themedical report in admissible form at trial (see Williams v Alexander, 309 NY at 285 n),establish the arguable existence of a triable issue of fact (see Sillman v TwentiethCentury-Fox Film Corp., 3 NY2d 395, 404 [1957]). Accordingly, the defendants'submissions were sufficient to raise a triable issue of fact, requiring the denial of the plaintiff'smotion. Prudenti, P.J., Angiolillo, Dickerson and Roman, JJ., concur.