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 (seeMarquez v. 171 Tenants Corp., 106 A.D.3d 422, 423, 963 N.Y.S.2d 868 [1st Dept. 2013] ; see alsoNunez 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.
Judgment, Supreme Court, New York County (Louis L. Nock, J.), entered October 3, 2022, to the extent appealed from as limited by the briefs, upon a jury verdict in plaintiff's favor, awarding damages in favor of plaintiff and against defendant 171 Tenants Corp. for past and future pain and suffering and future medical expenses, unanimously affirmed, without costs. As we noted in a prior appeal, this personal injury action stems from plaintiff's allegation "that he fell and sustained injuries when the ladder on which he was standing while painting a foyer outside ... [an] apartment twisted and then slipped out from underneath him" ( Marquez v. 171 Tenants Corp., 106 A.D.3d 422, 423, 963 N.Y.S.2d 868 [1st Dept. 2013] ). At trial, defendant's counsel sought to procure the testimony of a nonparty witness who had been working with plaintiff at the time of his accident.
Even if defendants had made a prima facie showing, it was rebutted by, among other things, the transcript of a recorded conversation between plaintiff and a Tyrax manager, in which the manager conceded that the area had been mopped and that no warning signs were placed thereafter. Even if a portion of the transcript is hearsay, under the particular circumstances it may be considered in conjunction with the other evidence to defeat summary judgment (see Marquez v. 171 Tenants Corp., 106 A.D.3d 422, 423, 963 N.Y.S.2d 868 [1st Dept.2013] ).
However, as the plaintiff correctly argues, under these circumstances the court may consider the document in opposing summary judgment regardless of whether a trial judge ultimately finds it to be hearsay. As the First Department held in Marquez v. 171 Tenants Corporation, 106 AD3d 422, 423 [1st Dept. 2013], "Assuming, without deciding, that the reports are hearsay, they may be submitted in opposition to the plaintiff's motion, and may bar summary judgment when considered in conjunction with other evidence." See also Guzman v. L.M.P. Realty Corp 262 AD2d 99 (1st Dept. 1999).