In Weicht v. City of New York, the plaintiff was injured when he fell from a ladder while working on the job site. However, plaintiff could not provide any details regarding the cause of his fall to support his motion for summary judgment under Labor Law § 240(1). Instead, plaintiff relied on a post-accident OSHA report to establish that the bottom of the ladder he was standing on suddenly slipped out from beneath him, causing his fall.  The lower court ruled that the evidence set forth was sufficient and granted plaintiff summary judgment.

On appeal, the First Department held that the defendant failed to properly challenge the admissibility of accident report during the original motion and could not raise the issue on appeal. But regardless, the First Department also opined that the report was admissible evidence because it constituted a business record. In addition, contained within the OSHA report was a statement from the defendant employer regarding the cause of the accident which was was admitted as a vicarious admission of an employee.   As such, the award of summary judgment was affirmed – despite any testimony from plaintiff regarding how the accident occurred.

Thanks to Geoffrey Blue for his contribution to this post and please write to Mike Bono for more information.