Opinion
11-21-2017
Heriberto MOSQUEDA, Plaintiff–Respondent, v. ARISTON DEVELOPMENT GROUP, et al., Defendants–Appellants.
Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola (Alyssa L. Garone of counsel), for Ariston Development Group, appellant. Braff, Harris, Sukoneck & Maloof, New York (Brian C. Harris of counsel), for Kenneth Cole Productions, Inc., appellant. Thomas Torto, New York, for respondent.
Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola (Alyssa L. Garone of counsel), for Ariston Development Group, appellant.
Braff, Harris, Sukoneck & Maloof, New York (Brian C. Harris of counsel), for Kenneth Cole Productions, Inc., appellant.
Thomas Torto, New York, for respondent.
ACOSTA, P.J., TOM, WEBBER, GESMER, SINGH, JJ.
Order, Supreme Court, New York County (Kelly O'Neill Levy, J.), entered July 13, 2016, which, in this action for personal injuries sustained when plaintiff fell from a ladder, granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim, unanimously affirmed, without costs.
Defendants' contention that a description of the accident in plaintiff's medical records inconsistent with his deposition testimony presents an issue of fact regarding his credibility, is unavailing. As Supreme Court found, statements in medical records, including "acts or occurrences leading to the patient's hospitalization—such as a narration of the accident causing the injury—not germane to diagnosis or treatment" constitute inadmissible hearsay ( Williams v. Alexander, 309 N.Y. 283, 287, 129 N.E.2d 417 [1955] ). Whether the subject ladder was wooden or metal or whether plaintiff fell because it slipped or because the rung cracked is not germane to diagnosis or treatment of injuries resulting from the fall (see Quispe v. Lemle & Wolff, Inc., 266 A.D.2d 95, 96, 698 N.Y.S.2d 652 [1st Dept.1999] ; compare Eitner v. 119 W. 71st St. Owners Corp., 253 A.D.2d 641, 677 N.Y.S.2d 555 [1st Dept.1998] ). Although the height from which plaintiff fell may be germane to diagnosis or treatment, the statute was violated under either version of the accident ( DeFreitas v. Penta Painting & Decorating Corp., 146 A.D.3d 573, 45 N.Y.S.3d 83 [1st Dept.2017] ; Romanczuk v. Metropolitan Ins. & Annuity Co., 72 A.D.3d 592, 899 N.Y.S.2d 228 [1st Dept.2010] ).
Moreover, the party admission exception to the hearsay rule does not apply. Any statement in the medical records allegedly attributable to plaintiff "does not qualify as an admission unless the [individual] who recorded it were to testify that it was the [plaintiff]'s statement" ( Mikel v. Flatbush Gen. Hosp., 49 A.D.2d 581, 582, 370 N.Y.S.2d 162 [2d Dept.1975] ; see Quispe at 96, 698 N.Y.S.2d 652 ; Gunn v. City of New York, 104 A.D.2d 848, 849–850, 480 N.Y.S.2d 365 [2d Dept.1984] ). Here, defendants offered no evidence connecting plaintiff to the statements in the medical records allegedly attributable to him and upon which they rely. Furthermore, while hearsay may be used to defeat summary judgment so long as it is not the only evidence relied on, the medical records are insufficient to defeat summary judgment here since they are the only evidence relied on by defendants on the issue (see Ying Choy Chong v. 457 W. 22nd St. Tenants Corp., 144 A.D.3d 591, 592, 42 N.Y.S.3d 116 [1st Dept.2016] ).