Appellate Division of the Supreme Court of New York, 1994

DeRocha v. Old Spaghetti Warehouse, Inc.

DeRocha v. Old Spaghetti Warehouse, Inc.
Appellate Division of the Supreme Court of New York · Decided September 30, 1994
207 A.D.2d 978; 617 N.Y.S.2d 89
DeRocha v. Old Spaghetti Warehouse, Inc.

Opinion of the Court

—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 NY2d 452; Howell v Rochester Inst. of Technology, 191 AD2d 1006; Allman v Ciminelli Constr. Co., 184 AD2d 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 AD2d 960, 961; Marasco v Kaplan, 177 AD2d 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 AD2d 817). (Appeal from Order of Supreme Court, Onondaga County, Murphy, J.—Labor Law § 240 [1].) Present— Denman, P. J., Green, Balio, Doerr and Boehm, JJ.

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