Opinion
December 19, 1994
Appeal from the Supreme Court, Suffolk County (Floyd, J.).
Ordered that the order is modified, on the law, by deleting therefrom the provision denying the motion of the defendant third-party plaintiff, and by substituting therefor a provision granting the motion; as so modified, the order is affirmed, with one bill of costs to the plaintiff payable by the third-party defendant.
Contrary to the contention of the appellant, the Supreme Court acted properly in granting the plaintiff's cross motion for partial summary judgment against it on the issue of liability pursuant to Labor Law § 240 (1). The plaintiff succeeded in demonstrating that he was injured when he fell from a steel beam at the subject construction site, and that, while he had been provided with a safety belt, there were no safety lines to which the belt could be attached in the work area where he fell (see, Desrosiers v Barry, Bette Led Duke, 189 A.D.2d 947; Merante v IBM, 169 A.D.2d 710). The appellant's submission of the unsworn statement of a purported witness failed to raise any triable issue of fact, inasmuch as the statement did not constitute evidentiary proof in admissible form (see, e.g., Grasso v Angerami, 79 N.Y.2d 813; Campbell v Lorenzo's Pizza Parlor, 172 A.D.2d 478). Moreover, the appellant's contention that the plaintiff's fall may have been attributable to the presence of bird droppings on the beam was insufficient to defeat the plaintiff's cross motion. It is well settled that Labor Law § 240 (1) applies where a worker is exposed to elevation-related hazards (see generally, Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494; Rocovich v Consolidated Edison Co., 78 N.Y.2d 509) and, as in this case, is injured in a fall because safety devices which would have prevented or broken the fall are not provided (see, Iannelli v Olympia York Battery Park Co., 190 A.D.2d 775; Allman v Ciminelli Constr. Co., 184 A.D.2d 1022; Merante v IBM, supra).
However, we agree with the appellant that the Supreme Court erred in denying its motion for summary judgment against the third-party defendant Brennan Company, Inc. (hereinafter Brennan) based on Brennan's failure to obtain liability coverage which named the appellant as an additional insured. The agreement between these parties clearly required that Brennan procure insurance naming the appellant as an additional insured, and it is undisputed that Brennan failed to comply with this contractual obligation. Therefore, the appellant has demonstrated its entitlement to judgment as a matter of law with respect to this claim (see, Kinney v Lisk Co., 76 N.Y.2d 215; Schumacher v Lutheran Community Servs., 177 A.D.2d 568). We note that the affirmative defenses asserted by Brennan in opposition to the motion are unavailing because they were not pleaded in the third-party answer and, in any event, are without merit. Accordingly, the appellant is entitled to recover from Brennan the damages resulting from the breach, including the liability of the appellant to the plaintiff and the costs incurred by the appellant in defending the plaintiff's action (see, Morel v City of New York, 192 A.D.2d 428; Roblee v Corning Community Coll., 134 A.D.2d 803). Sullivan, J.P., Lawrence, Ritter and Joy, JJ., concur.