Opinion
798 CA 01-02024
July 3, 2002.
Appeal from an order of Supreme Court, Oswego County (McCarthy, J.), entered June 19, 2001, which granted plaintiff's motion for partial summary judgment on liability on the Labor Law § 240(1) claim.
DAMON MOREY LLP, BUFFALO (CAROL G. SNIDER OF COUNSEL), FOR DEFENDANT-APPELLANT.
DI NARDO, METSCHL DWYER, P.C., BUFFALO (MICHAEL G. DWYER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: HAYES, J.P., WISNER, KEHOE, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by vacating that part of the oral decision of May 29, 2001 determining as a matter of law that plaintiff's psychological injuries were caused by the accident and as modified the order is affirmed without costs.
Memorandum:
Plaintiff commenced this action seeking damages for both physical and psychological injuries he allegedly sustained when he fell while descending a ladder. In granting plaintiff's motion for partial summary judgment on liability on the Labor Law § 240(1) claim, Supreme Court determined both that defendant violated the statute and that as a matter of law both the physical and psychological injuries were caused by the accident. The sole contention of defendant on appeal is that the court erred in determining as a matter of law that plaintiff's psychological injuries were caused by the accident. We agree. Plaintiff did not seek that relief and, even if he had, we agree with defendant that the issue is one of fact for trial ( see generally Pola v. Nycz, 281 A.D.2d 839, 840; Murphy v. Islat Assoc. Graft Hat Mfg. Co., 264 A.D.2d 583, 584). The only medical evidence in the record with respect to this issue is an unsworn medical report, which does not constitute proof in admissible form ( see Grasso v. Angerami, 79 N.Y.2d 813, 814; Doyle v. Health Care Plan, 245 A.D.2d 1018). We therefore modify the order accordingly.