Opinion
September 30, 1994
Appeal from the Supreme Court, Onondaga County, Murphy, J.
Present — Denman, P.J., Green, Balio, Doerr and Boehm, JJ.
Order unanimously reversed on the law with costs and motion granted. Memorandum: Supreme Court erred in denying plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240 (1). Plaintiff submitted proof in admissible form establishing both that the statute was violated and that the violation was the proximate cause of his injury (see, Bland v. Manocherian, 66 N.Y.2d 452; Howell v. Rochester Inst. of Technology, 191 A.D.2d 1006; Allman v. Ciminelli Constr. Co., 184 A.D.2d 1022). The fact that no one saw plaintiff fall from the scaffold does not warrant the denial of summary judgment (see, Davis v. Pizzagalli Constr. Co., 186 A.D.2d 960, 961; Marasco v. Kaplan, 177 A.D.2d 933). Employees of third-party defendant immediately came to plaintiff's assistance and had the opportunity to investigate the accident and to inspect the scaffold (see, Davis v. Pizzagalli Constr. Co., supra, at 961; Marasco v. Kaplan, supra). Speculation concerning the cause of plaintiff's fall, based upon inadmissible hearsay, is insufficient to create an issue of fact (see, Allman v. Ciminelli Constr. Co., supra, at 1023; Place v. Grand Union Co., 184 A.D.2d 817).