MARK E. FEINBERG V. GERMINIANO SANZ

115 A.D.3d 705, 982 N.Y.S.2d 133 (Mar. 12, 2014)

The plaintiff/decedent fell from a roof to his death after the worksite had been “closed up for the day.” A forensic toxicology report indicated the plaintiff’s blood alcohol level was .2 percent and there were beer cans on the roof. The court held that the work had been completed for the day and that the decedent was not engaged in a protected enumerated activity at the time of his fall from the roof. Therefore, the court dismissed the §240 and 241(6) causes of action.

Practice Note: In reaching its decision that hearsay evidence may be used to defeat a motion for summary judgment, the court held that such evidence alone is insufficient.

Topics: Protected Activity; Sole Proximate Cause; Superceding Cause