Opinion
12470 Index No. 20623/16 Case No. 2020-02444
11-24-2020
Mario Ortiz PINA, Plaintiff–Appellant, v. ARTHUR CLINTON HOUSING DEVELOPMENT FUND CORP., Defendant–Respondent.
Rimland & Associates, New York (Edward Rimland of counsel), for appellant. Newman Myers Kreines Harris P.C., New York (Stephen N. Shapiro of counsel), for respondent.
Rimland & Associates, New York (Edward Rimland of counsel), for appellant.
Newman Myers Kreines Harris P.C., New York (Stephen N. Shapiro of counsel), for respondent.
Friedman, J.P., Manzanet–Daniels, Oing, Kennedy, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered December 13, 2019, which denied plaintiff's motion for summary judgment on his Labor Law § 241(6) claim, unanimously affirmed, without costs.
The motion court properly denied plaintiff's motion for summary judgment on his Labor Law § 241(6) claim, which was predicated on an alleged violation of Industrial Code ( 12 NYCRR) § 23–1.7(d). Although plaintiff testified that his injuries resulted from a slippery condition at the work site, plaintiff's own conflicting accounts of what caused the accident and resulting injury were sufficient to raise a triable issue of fact as to how the accident occurred and whether a slip and fall on a wet surface was a proximate cause. In addition to two witnesses' testimony that plaintiff told them that he struck himself in the face with plywood while prying it up, and the plywood "went back" on him, plaintiff's own submissions to the Workers Compensation Board provided inconsistent accounts of how the accident occurred and did not mention a slip and fall on a watery surface (see Marquez v. 171 Tenants Corp., 106 A.D.3d 422, 423, 963 N.Y.S.2d 868 [1st Dept. 2013] ; see also Nunez v. City of New York, 100 A.D.3d 724, 724–725, 954 N.Y.S.2d 163 [2d Dept. 2012] ).
The court properly considered some of the medical records submitted in opposition to plaintiff's summary judgment motion, in which plaintiff also provided inconsistent accounts of how the accident occurred. Even assuming that the descriptions of the accident contained in plaintiff's medical records were not germane to his treatment and diagnosis, the entries in at least three of the medical records were directly attributable to plaintiff so as to constitute admissions (see Robles v. Polytemp, Inc., 127 A.D.3d 1052, 1054, 7 N.Y.S.3d 441 [2d Dept. 2015] ; Marquez at 423, 963 N.Y.S.2d 868 ; cf. Benavides v. City of New York, 115 A.D.3d 518, 519–520, 982 N.Y.S.2d 85 [1st Dept. 2014] ). Even assuming that these entries constituted hearsay, they may be submitted in opposition to plaintiff's motion and properly considered in conjunction with the other evidence in the record, which provided different descriptions of the accident ( Marquez at 423, 963 N.Y.S.2d 868 ).