In Silva v. FC Beekman Associates, LLC, the plaintiff was injured when he fell 14 feet from a scaffold while working in the elevator shaft of a high rise building in Manhattan.  The plaintiff sued the owner of the building and general contractor alleging a violation of Labor Law 240(1 based on a claim that there were no railings or safety net around the scaffold he was working on and he was not provided with a harness.

At the close of discovery, the plaintiff moved for summary judgment.  The defendants opposed the motion by providing an affidavit from the plaintiff’s co-worker, James Kern, who stated that he was working with the plaintiff and the scaffold had railings on two sides.  However, Kern did not witness the accident.  The Supreme Court, Queens County granted the plaintiff’s motion, holding that the affidavit was hearsay because Kern did not state that both railings were in place at the time of the plaintiff’s accident.

The Appellate Division, Second Department reversed the lower court’s decision, holding that Kern’s affidavit was based on his personal observations and the fact that he did not specifically state that the railings were present “at the time of the accident” was not dispositive.  The Court further noted that the statement, when read in proper context and in its totality, is clear that Kern was referring to the time of the subject accident.  Accordingly, Kern’s affidavit created a question of fact that precluded summary judgment.

Thanks to Ed Lomena for his contribution to this post.

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http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01236.htm