Opinion
60227/2013
06-29-2016
Enrique Reyes, Plaintiff, v. Campo Brothers and Campo Brothers Development Corp., Defendants.
Albert Zafonte, Jr. Esq. Atty. For Plaintiff 215 Uniondale Ave. Uniondale, NY 11553 CONGDON, FLAHERTY et al Attys. For Defendants 333 Earle Ovington Blvd. - Ste. 502 Uniondale, NY 11553
Albert Zafonte, Jr. Esq. Atty. For Plaintiff 215 Uniondale Ave. Uniondale, NY 11553 CONGDON, FLAHERTY et al Attys. For Defendants 333 Earle Ovington Blvd. - Ste. 502 Uniondale, NY 11553 Thomas F. Whelan, J.
Upon the following papers numbered 1 to 6read on this motion by the plaintiff for partial summary judgment; Notice of Motion/Order to Show Cause and supporting papers 1 - 3; Notice of Cross Motion and supporting papers; Answering papers4; Reply papers5 ; Other 6 (memorandum) ; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that this motion (#001) by the plaintiff for partial summary judgment on its Labor Law § 240(1) claim to recover damages for the personal injuries he sustained while working on a roof at a construction site and for a severance of the cross claims asserted by and against the defendants is considered under CPLR 3212 and Labor Law § 240(1) and is denied.
This action arises out of a work place accident that occurred on November 29, 2012 in which the plaintiff sustained a fractured back and other personal injuries. At the time of the accident, the plaintiff was working as a roofing technician for Costanza Siding, Inc., which was a subcontractor at a job site managed by defendant, Campo Brothers Development, Inc., on premises owned by defendant, Campo Brothers, a partnership.
The plaintiff's immediate task upon his arrival at the job site at 7:00 a.m. on November 29, 2012,was to attach ice shields to the roof edges and to the valleys of connecting roof lines of the under construction. The plaintiff twice ascended an available ladder and successfully placed ice shields at the edge of the roof without incident. He then allegedly climbed the ladder and got onto the roof and was attaching an ice shield to a valley where roof lines met when he slid backwards with the ice shield and fell off the roof. The slippery condition of the roof is attributable to a coating of frost or areas of black ice that blanketed the roof on the morning of the accident. Other than the ladder, the plaintiff was not equipped with safety devices or measures to guard against a fall.
By the instant motion (#001), the plaintiff seeks partial summary judgment on his Third cause of action to recover damages from the defendants pursuant to the provisions of Labor Law § 240(1). The motion is opposed by the defendants who challenge the quality of the plaintiff's proof from evidentiary perspectives and upon grounds that questions of fact exist due to the plaintiff's differing accounts as to the occurrence of the accident, all of which preclude an award of summary judgment as demanded on this motion. Specifically, the defendants, through their counsel, contend that the plaintiff's hospital records reveal that he first reported to medical providers that he fell from the ladder and not from the roof as is now alleged.
In his reply papers, the plaintiff claims that the account of the accident set forth in the hospital record is erroneous as he told the nurse that he fell from the roof and not from the ladder. The plaintiff and his counsel thus dispute the existence of any discrepancy in the plaintiff's account of the accident and they further allege that the hospital record relied upon by the defendants is inadmissible hearsay.
The challenge to the plaintiff's use of his deposition testimony to support his motion due to the absence of a "sworn to" signature page has been remedied by the furnishing of such page as an attachment to the plaintiff's reply papers and is thus unavailing. The defendant's second procedural challenge to the plaintiff's submission of an affidavit in English rather than in Spanish with a translator's affidavit attached thereto is also unavailing. Defense counsel's conclusory claim that the plaintiff does not speak English as evidenced by his employment of a translator at his deposition is rejected as unmeritorious for the reasons set forth in the reply papers and further affidavit of the plaintiff attached thereto.
Nevertheless, the defendants' claim that questions of fact exist due to the differing versions or accounts of the accident which the plaintiff allegedly advanced does have merit.
As indicated above, this claim of inconsistent versions of the accident rests upon the plaintiff's deposition testimony as to the cause of the accident wherein he described his fall as one from the roof caused by the slippery condition of the roof as outlined above and the hospital records which recite that the plaintiff stated to medical providers that he fell from a ladder while he "was outside the house on the ladder and when I went to step up it wasn't steady and fell onto my back on the ground" ( see Exhibit A attached to the opposing affirmation of defense counsel). The description of the fall as one from the ladder rather than from the roof was also advanced in the plaintiff's original complaint, even though this factual assertion was supplanted by the allegations of a fall from the roof that are contained in the amended complaint the plaintiff served as or right pursuant to CPLR 3025(b) ( see Mendrzycki v Cricchio , 58 AD3d 171, 868 NYS2d 107 [2d Dept 2008]).
For the reasons stated below, the court finds that these circumstances warrant a denial of the motion.
In general, a hearsay entry in a hospital record is admissible under the business records exception to the hearsay rule if the entry is germane to the diagnosis or treatment of the patient (see Robles v Polytemp , Inc ., 127 AD3d 1052, 1054, 7 NYS3d 441 [2d Dept 2015]; Coker v Bakkal Foods , Inc ., 52 AD3d 765, 766, 861 NYS2d 384 [2d Dept 2008]). However, "if the entry is inconsistent with a position taken by a party at trial, it is admissible as an admission by that party, even if it is not germane to diagnosis or treatment, as long as there is evidence connecting the party to the entry'" ( Berkovits v Chaaya , 138 AD3d 1050, 31 NYS3d 531 [2d Dept 2016], quoting Robles v Polytemp , Inc., 127 AD3d at 1054, 7 NYS3d 441 [2d Dept 2015]; Berrios v 735 Ave . of the Ams., LLC , 103 AD3d 472, 959 NYS2d 477 [2d Dept 2006]).
That the instant motion for summary judgment "is the procedural equivalent of a trial" is clear ( Rivers v Birnbaum , 102 AD3d 26, 953 NYS3d 232 [2d Dept 2012]). The plaintiff's claim that his account of the accident set forth in the hospital record as a fall from a ladder rather than a fall from the roof is inadmissible hearsay because it was not germane to diagnosis or treatment is incorrect under the above cited case authorities if there is evidence to connect the plaintiff to such entry (see Berkovits v Chaaya , 138 AD3d 1050, supra; Berrios v 735 Ave . of the Ams., LLC , 103 AD3d 472, supra). Such evidence exists here due to the plaintiff's assertion in his reply affidavit that he remembers speaking to the nurse about the occurrence of the accident and the absence of any claim that the facts she recorded came from anyone other than the plaintiff himself. Although the plaintiff challenges the entries as factually incorrect because he swears that he told the nurse the same version of the accident as he testified to at his deposition and that the physician got it wrong in reciting that the fall was from the ladder rather than the roof, these challenges do not establish that the plaintiff was not the source of the information recorded in the hospital record.
Moreover, the claim that the fall was from the ladder and not from the roof is consistent with the plaintiff's description of the fall in his original complaint. Even after amendment, an admission in an original pleading is evidence of a fact admitted (see Kwiecinski v Chung Hwang , 65 AD3d 1443, 885 NYS2d 783 [3d Dept 2009]; Bogoni v Friedlander , 197 AD2d 281, 610 NYS2d 511[1st Dept 1994]), and admissions in pleadings are always evidence for the purpose of the trial of an action (see DeSouza v Khan , 128 AD3d 756, 11 NYS3d 168 [2d Dept 2015]). Indeed, all negative jural consequences of formal or informal admissions remain available to adverse parties for use at trial, or on any motion equivalent thereof, even where the pleading amendment was made with the grant of a judicially sanctioned amendment rather than under the as of right provisions of CPLR 30125(b), as was the case here (see Zegarowicz v Ripatti , 77 AD3d 650, 911 NYS2d 69 [2d Dept 2010]; Bogoni v Friedlander , 197 AD2d 218, supra; see also Kwiecinski v Chung Hwang , 65 AD3d 144, supra). The plaintiff's deposition testimony is thus inconsistent with the hospital records entries and the facts all asserted in the original complaint which constitute formal or informal judicial admissions. These inconsistencies give rise to questions of fact, including those of credibility, which preclude the granting of the instant motion. Dated: June 29, 2016 THOMAS F. WHELAN, J.S.C.