Caminiti v. Extell W. 57TH St. LLC

• Decision Date: 13 November 2018
• Docket Number: Index 150298/13,7591
• Citation: 88 N.Y.S.3d 13,166 A.D.3d 440
• Parties: Maria CAMINITI, as Administratrix of the Estate of Pasquale Caminiti, etc., Plaintiff–Respondent, v. EXTELL WEST 57TH STREET LLC, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 440

88 N.Y.S.3d 13

Maria CAMINITI, as Administratrix of the Estate of Pasquale Caminiti, etc., Plaintiff–Respondent,

v.EXTELL WEST 57TH STREET LLC, et al., Defendants–Appellants.

7591

Index 150298/13

Supreme Court, Appellate Division, First Department, New York.

ENTERED: NOVEMBER 13, 2018

Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., New York (Joel M. Maxwell of counsel), for appellants.

Fortunato & Fortunato, PLLC, Brooklyn (Louis A. Badolato of counsel), for respondent.

Sweeny, J.P., Manzanet–Daniels, Gische, Gesmer, Singh, JJ.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered March 6, 2018, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim, and denied defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to deny plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim, and grant defendants' motion for summary judgment dismissing so much of the Labor Law § 241(6) claim as based on alleged violations of Industrial Code §§ 23–1.2, –1.5, –1.16, –1.17, –1.30, –1.31, –2.1, and –2.4, and otherwise affirmed, without costs.

The court properly found that plaintiff's testimony about her now-deceased husband's statement regarding his accident is admissible as a declaration against interest (see generally Basile v. Huntington Util. Fuel Corp., 60 A.D.2d 616, 617, 400 N.Y.S.2d 150 [2d Dept. 1977] ; Guide to N.Y. Evid rule 8.11, Statement Against Penal or Pecuniary Interest, www.nycourts.gov/judges/evidence/8–HEARSAY/8.11). Decedent's statement that he should have known better than to use the ladder as he did, established that he knew his statement was against his interest. Although the statement was uncorroborated, it had sufficient indicia of reliability, in that the experienced, 52–year–old electrician described his accident to his wife alone in an emergency room while awaiting surgery, in the absence of any coercion or attempt to shift blame away from himself (cf. Nucci v. Proper, 95 N.Y.2d 597, 602, 721 N.Y.S.2d 593, 744 N.E.2d 128 [2001] ). Accordingly, we decline to reach plaintiff's alternative arguments as to the statement's admissibility.

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the Labor Law § 240(1) claim by presenting decedent's statement that he was working on a ladder when it started to move, and when he tried to stabilize the ladder, it tipped and struck him in the chest (see Rom v. Eurostruct, Inc., 158 A.D.3d 570, 71 N.Y.S.3d 57 [1st Dept. 2018] ). Plaintiff was not "required to present further evidence that the ladder was defective" ( Fanning v. Rockefeller Univ., 106 A.D.3d 484, 485, 964 N.Y.S.2d 525 [1st Dept. 2013] ).

However, defendants raised triable issues of fact as to whether decedent's injuries were caused by an accident involving a ladder. Two accident reports set forth his alleged statement that he was working on the ladder when he started feeling chest pains and his legs became "unsteady" or "wobbly." Moreover, decedent's coworker, who was working in the same apartment unit separated from decedent by a concrete wall but went over to decedent's area, not in response to any commotion but for routine purposes, saw that the ladder was in the upright position...