Candela v. City of New York

• Decision Date: 08 June 2004
• Docket Number: 3317.
• Parties: CALOGERO CANDELA et al., Appellants, v. CITY OF NEW YORK et al., Respondents.
• Court: New York Supreme Court — Appellate Division

8 A.D.3d 45

777 N.Y.S.2d 31

2004 NY Slip Op 04760

CALOGERO CANDELA et al., Appellants, v. CITY OF NEW YORK et al., Respondents.

3317.

Appellate Division of the Supreme Court of the State of New York, First Department.

June 8, 2004.

Order, Supreme Court, New York County (Michael Stallman, J.), entered on or about February 28, 2003, which granted defendants' motion and cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion and cross motion denied and the complaint reinstated.

Plaintiffs brought this action for personal injuries as a result of injuries sustained by plaintiff Calogero Candela (plaintiff) while he was working on a construction project at West Side High School in Manhattan. At the time of the accident, plaintiff was employed by Manhattan Demolition, a subcontractor hired by defendant TDX Becom, originally a safety consultant on the project. At some point during the pendency of the project, but before plaintiff's accident, TDX was named project manager, which provided it with supervisory responsibilities over the entire project, equal to that of the general contractor.

On the date of the accident, plaintiff's duties involved scraping and cleaning mortar from the window frames in order to prepare them for the caulking contractor. To accomplish this, plaintiff remained inside the room and leaned out through the window while working on the window frames. Plaintiff claims that as he leaned out of an open window and began to scrape away the mortar, the window slammed down on his back causing him injury.

Immediately after the accident, plaintiff spoke to the TDX project manager, Ivan Badinsky, who prepared a report of the incident and sent plaintiff to the hospital. According to an affidavit submitted by plaintiff, during this discussion Badinsky told him that there was an "ongoing problem" with the windows whereby they would not remain in an open position as they were designed to do. According to plaintiff, Badinsky also stated that he almost had injured his own hand when one of the windows had unexpectedly closed on him prior to plaintiff's accident.

Plaintiffs commenced the instant action against defendants alleging common-law negligence and various Labor Law violations. Only the Labor Law § 200 and common-law negligence causes of action remain at issue on this appeal. After discovery, the contractor defendants moved for summary judgment on the ground that none of them exercised supervision or control over plaintiff's work and there was no evidence that any defendant had actual or constructive notice of the defective windows. The City defendants cross-moved for the same relief, adopting the arguments of the contractor defendants.

In opposition, plaintiff submitted his affidavit describing his conversation with Badinsky immediately after the accident regarding the "ongoing problem" with the windows and Badinsky's near accident. In his deposition, Badinsky denies knowledge of any problem with the windows prior to plaintiff's accident.

Supreme Court granted the motion and cross motion for summary judgment and dismissed the complaint, holding that plaintiff had failed to adduce admissible evidence tending to show that defendants had actual or constructive notice of the defective window or that defendants supervised or controlled plaintiff's work. The court further held that Badinsky's statements were inadmissible hearsay that did not qualify for admission under the "speaking agent" exception since, as a matter of law, Badinsky did not have the "legal authority to make such an admission or to bind his employer as to a legal issue."

On appeal, plaintiff argues that Badinsky's statements should have been admitted under the speaking agent hearsay exception and that such statements, once admitted, were sufficient to raise a triable issue of fact as to defendants' actual notice of the defective window condition. We agree.¹

In order to establish liability for a dangerous condition under principles of common-law negligence, a plaintiff must show that the defendant created the condition or had actual or constructive notice thereof (see Lally v JGN Constr. Corp., 295 AD2d 148, 149 [2002], lv denied 99 NY2d 504 [2002]). The parties agree that the only evidence offered by plaintiff to establish notice are Badinsky's out-of-court statements regarding the "ongoing problem" with the windows. Although hearsay may be used to oppose a summary judgment motion, "such evidence is insufficient to...