Second Department Finds Report of Accident Investigation to Be Insufficient to Raise Question of Fact on Plaintiff's Labor Law 240(1) Claim

In Guanopatin v. Flushing Acquisition Holdings, LLC, the plaintiff was injured when a one ton pre-cast concrete plank fell onto plaintiff's hand from a jack being used to raise the plank.  In affirming summary judgment in plaintiff's favor pursuant to Labor Law 240(1), the Second Department found that the defendant had failed to raise a question of fact as to whether plaintiff was the sole proximate cause of his accident.  More specifically, the statement of plaintiff's employer that his accident investigation revealed that plaintiff disregarded a foreman's instructions to stop work and to not raise the plank to the maximum height level of the jack, were hearsay statements that, standing alone, were insufficient to defeat summary judgment.