Opinion
2012-05-8
Filiberto EUSTAQUIO, et al., Plaintiffs–Respondents, v. 860 CORTLANDT HOLDINGS, INC., et al., Defendants–Appellants.
Rubin, Fiorella & Friedman LLP, New York (Shelley R. Halber of counsel), for appellants. Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for respondents.
Rubin, Fiorella & Friedman LLP, New York (Shelley R. Halber of counsel), for appellants. Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for respondents.
MAZZARELLI, J.P., SAXE, MOSKOWITZ, RENWICK, FREEDMAN, JJ.
Order, Supreme Court, New York County (Louis B. York, J.), entered September 21, 2011, which granted plaintiff's motion for partial summary judgement on the issue of liability on his Labor Law § 240(1) claim, unanimously affirmed, without costs.
Plaintiff met his prima facie burden by submitting his deposition testimony and affidavit showing that he fell from a ladder that was not properly secured or equipped with adequate safety devices ( see e.g. Granillo v. Donna Karen Co., 17 A.D.3d 531, 531, 793 N.Y.S.2d 465 [2005],lv. dismissed in part, denied in part5 N.Y.3d 878, 808 N.Y.S.2d 138, 842 N.E.2d 23 [2005];Velasco v. Green–Wood Cemetery, 8 A.D.3d 88, 89, 779 N.Y.S.2d 459 [2004] ).
Defendants' evidence was insufficient to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of his injuries. The sworn statement of the foreman of plaintiff's nonparty employer, prepared by a private investigator during an investigation of plaintiff's claim, was inadmissible. While the statement and the investigator's affidavit state that the foreman's daughter had translated the statement from Greek to English, the statement was not accompanied by an attestation from the daughter setting forth her qualifications and the accuracy of the translation ( seeCPLR 2101[b]; Reyes v. Arco Wentworth Mgt. Corp., 83 A.D.3d 47, 54, 919 N.Y.S.2d 44 [2011] ). The deposition testimony of the president of plaintiff's employer was insufficient to show that plaintiff was recalcitrant in failing to secure the ladder with a rope before using it, as the president had no personal knowledge of the accident or the condition of the ladder at the time of the accident ( see Madalinski v. Structure–Tone, Inc., 47 A.D.3d 687, 688, 850 N.Y.S.2d 505 [2008];Kyle v. City of New York, 268 A.D.2d 192, 707 N.Y.S.2d 445 [2000],lv. denied97 N.Y.2d 608, 739 N.Y.S.2d 97, 765 N.E.2d 300 [2002] ). Defendants failed to preserve their argument that plaintiff was recalcitrant in choosing to use the unsecured ladder instead of an interior staircase, and we decline to review it. In any event, the argument is unavailing, as there is no evidence in the record indicating that the workers had permission to use the internal stairway, or that the use of the ladder to access or leave the roof constituted a misuse of the device ( cf. Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550, 554–555, 814 N.Y.S.2d 589, 847 N.E.2d 1162 [2006] ). Rather, the evidence shows that plaintiff and the other workers were instructed to use the ladder to access the roof ( cf. Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39–40, 790 N.Y.S.2d 74, 823 N.E.2d 439 [2004] ). Insofar as defendants argue that harnesses were available at the job site, the evidence does not show that the workers were expected to, or instructed to, use a harness while ascending or descending a ladder ( see Auriemma v. Biltmore Theatre, LLC., 82 A.D.3d 1, 10, 917 N.Y.S.2d 130 [2011];Gallagher v. New York Post, 14 N.Y.3d 83, 88–89, 896 N.Y.S.2d 732, 923 N.E.2d 1120 [2010] ). Indeed, the general contractor's field supervisor and the president of plaintiff's employer both testified that harnesses were not needed for the roofing work, given the existence of a parapet wall around the roof.
We have reviewed defendants' remaining contentions and find them unavailing.