Client Advisory

The Appellate Division of the New York Supreme Court, First Department, ruled that, where a plaintiff has made a prima facie case, defendants cannot defeat summary judgment by pointing to a contradictory statement made by the plaintiff in hospital records, where it has not been shown the plaintiff was provided with a translator, where the records are uncertified, and where the statement was not germane to the diagnosis or treatment.

In Berrones v 130 E. 18 Owners Corp., plaintiff Berrones sought partial summary judgment on his claim pursuant to Labor Law § 240(1) (relating to scaffolding in construction). Berrones had been performing bricklaying work on an elevated pipe scaffold when he fell through a gap between the scaffold and the building façade, hidden by plastic nailed to the scaffold and building. Defendants opposed plaintiff’s motion for summary judgment partly by disputing the way plaintiff was injured. Defendants put forward the testimony of two of defendants’ witnesses, which relayed the account of Berrones’s foreman that Berrones was injured while walking on top of a sidewalk shed carrying bricks. In addition, defendants pointed to records from Berrones’ treating hospital, which noted that Berrones “slipped and braced himself by bending the left knee.” The trial court granted summary judgment for Berrones.
Upon appeal, the First Department affirmed, echoing the trial court’s reasoning that the contractor’s testimony was inadmissible hearsay, and the notations in uncertified hospital records do not rebut plaintiff’s showing where no evidence was adduced that the information was properly translated for plaintiff and the disputed cause of plaintiff’s injury was not germane to his diagnosis or treatment.

Key Takeaway: This case demonstrated the value in pursuing record certification or authentication through subpoenaed testimony where the statements in the records are germane to defending a critical element of the claim.