Zuluaga v. P.P.C. Construction, LLC

• Court: New York Supreme Court — Appellate Division
• Citation: Zuluaga v. P.P.C. Construction, LLC, 45 A.D.3d 479, 847 N.Y.S.2d 30, 2007 NY Slip Op 9340 (N.Y. App. Div. 2007)
• Decision Date: 27 November 2007
• Docket Number: 2051.,2052.
• Parties: CESAR ZULUAGA, Respondent, v. P.P.C. CONSTRUCTION, LLC, Appellant, et al., Defendant.

45 A.D.3d 479

847 N.Y.S.2d 30

2007 NY Slip Op 09340

CESAR ZULUAGA, Respondent, v. P.P.C. CONSTRUCTION, LLC, Appellant, et al., Defendant.

2051.

2052.

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

Decided November 27, 2007.

Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered August 7, 2006, which, insofar as appealed from, granted plaintiff's motion for partial summary judgment on his Labor Law § 240 (1) and § 241 (6) causes of action, and denied defendant P.P.C. Construction, LLC's (PPC) cross motion for summary judgment dismissing the complaint as against it, and order, same court and Justice, entered May 17, 2007, which, insofar as appealable, denied PPC's motion to renew, unanimously affirmed, without costs.

Partial summary judgment was properly granted to plaintiff on his Labor Law § 240 (1) claim in this action where plaintiff, while performing asbestos removal work on the building's first floor, was injured when he was struck by a six-foot-long pipe that fell from several floors above where other workers were performing demolition work, including the cutting and removal of pipes from the pipe chase (see Outar v City of New York, 5 NY3d 731 [2005]; Boyle v 42nd St. Dev. Project, Inc., 38 AD3d 404 [2007]). The record evidence established that no safety devices were provided, other workers had been injured in the same manner and plaintiff had complained to his supervisor and to a representative of PPC about the danger posed. There was an absence of evidence that plaintiff's conduct was the sole proximate cause of the accident, and the accident report, purportedly prepared by plaintiff's supervisor, which PPC submitted in opposition to the motion, was properly rejected by the court since it was in inadmissible form. No foundation was provided that the report was prepared in the ordinary course of business (CPLR 4518 [a]; see Matter of Leon RR., 48 NY2d 117, 122-123 [1979]), and the affirmation of counsel was insufficient to provide a foundation considering that the report was not PPC's record and had not been exchanged during discovery (cf. Asare v Ramirez, 5 AD3d 193, 194 [2004]; State of New York v Tarrytown Corporate Ctr., II, 208 AD2d 1009, 1011 [1994]). Nor was the report so patently trustworthy as to be self-authenticating.

Partial summary judgment was properly granted to plaintiff on his Labor Law § 241 (6) cause of action based on sufficiently specific violations of Industrial Code (12 NYCRR) § 23-1.7 (a) and § 23-3.3 (g), requiring that workers be provided with suitable overhead protection in areas where there is risk of falling debris (see Murtha v Integral Constr. Corp., 253 AD2d 637, 639 [1998]). Contrary to PPC's position, the court appropriately permitted plaintiff to amend his bill of particulars to allege the specific code violations and considered the violations listed by counsel on the summary judgment motion despite plaintiff's failure to identify them...