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Decedent's Statements to His Wife Admissible as Hearsay Exception, Defeating Estate's MSJ (NY)

December 5, 2018

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In <em><a href="">Caminiti v Extell West 57th Street LLC</a></em>, 2018 WL 5914129, 2018 N.Y. Slip Op. 07667 (1<sup>st</sup> Dep’t 2018), the decedent in a wrongful death Labor Law suit made a statement to his wife in the ER after an accident that he "should have known better" than to use a ladder as he did.  He later died.  Plaintiff, the administratix of the deceased’s estate, sued under Labor Law §240(1) and Labor Law §241(6) against defendants, the owner, developer, and general contractor of the project.

Plaintiff made a motion for partial summary judgment on Labor Law §240(1) and the defendants made a motion for summary judgment to dismiss the complaint.  Judge Arlene Bluth in New York Supreme, granted plaintiff’s motion and denied the defendants.  Upon appeal, the First Department modified the order to also deny the plaintiff’s motion and granting defendants’ motions as to the Labor Law §241(6) claims based on several Industrial Code sections.

The First Department ruled that the lower court properly ruled that the now-deceased husband’s statement regarding his accident was admissible as a declaration against interest in order to establish his wife, as an adminstratix of the deceased husband’s estate’s, prima facie case under Labor Law §240(1).  The statements showed, as a matter of law ,that the ladder started to move while he was working on it, and when he tried to stabilize the ladder, it tipped and struck him in the chest.  The First Department ruled that plaintiff was not required to present further evidence that the ladder was defective.

However, the defendants raised triable issues of facts as accident reports showed that while he was on the ladder, he felt chest pains and his legs became “unsteady” or “wobbly."  Furthermore, his co-workers saw the ladder in an upright position about 10 feet away from the decedent when he expressed that he was suffering chest pains.  As such, plaintiff’s partial motion for summary judgment on Labor Law §240(1) was dismissed.

Furthermore, the First Department ruled that since plaintiff failed to specifcy any particular subsection or subdivisions of the provisions Industrial Code sections, the Labor Law §241(6) claim as to those provisions were considered abandoned. As such, Defendant’s motions for summary judgment to dismiss the complaint was granted as to those provisions.

The fact that hearsay evidence from the deceased was admitted through the administratix’s testimony shows the value in a plaintiff administrator’s testimony, not just to damages, but potentially to <em>liability</em>.  Proactive defense counsel should be wary of such testimony while taking depositions and be ready to cross-examine the administrating witness attempting to bring in any hearsay evidence from the deceased.

Thanks to Jonathan Pincus for his contribution to this post.  Please email <a href="">Brian Gibbons</a> with any questions.


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