SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

695 

CA 11-00158 

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ. 

 

JEREMIAH BIGGS, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

DAVID HESS, ANTHONY ALMEDA, DEFENDANTS, 

AND ANTHONY BERNARDI, DOING BUSINESS AS TONY’S 

CONSTRUCTION, DEFENDANT-APPELLANT. 

 

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (ALAN J. DEPETERS OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

MARCUS & CINELLI, LLP, WILLIAMSVILLE (BRIAN L. CINELLI OF COUNSEL),

FOR PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Erie County (Joseph R.

Glownia, J.), entered May 4, 2010 in a personal injury action. The

order, insofar as appealed from, denied the cross motion of defendant

Anthony Bernardi, doing business as Tony’s Construction, for summary

judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs. 

Memorandum: Plaintiff commenced this Labor Law and common-law

negligence action seeking damages for injuries he sustained when the

ladder on which he was standing slipped out from under him, causing

him to fall. At the time of the accident, plaintiff was painting the

interior of a garage on property owned by defendants David Hess and

Anthony Almeda. Prior to plaintiff’s accident, Almeda hired Anthony

Bernardi, doing business as Tony’s Construction (defendant), to

demolish a house on the property and remove debris. According to

plaintiff, the painting of the garage (hereafter, painting project)

was part of a larger renovation project on the property, for which

defendant was the general contractor, and defendant supervised and

controlled the painting project.

We reject defendant’s contention that Supreme Court erred in

denying his cross motion for summary judgment dismissing the complaint

against him. Defendant met his initial burden on the cross motion by

submitting admissible evidence establishing that he was not the

general contractor for the painting project, that he did not own the

property where the accident occurred and that he did not supervise or

control plaintiff’s work (see Uzar v Louis P. Ciminelli Constr. Co.,

Inc., 53 AD3d 1078, 1079; see generally Zuckerman v City of New York,
-2- 695 

CA 11-00158 

49 NY2d 557, 562). In opposition to the cross motion, however,

plaintiff raised a triable issue of fact whether defendant was liable

as a general contractor (see generally Zuckerman, 49 NY2d at 562). 

Plaintiff submitted an affidavit in which he averred, inter alia, that

he overheard phone conversations between a coworker and defendant in

which the coworker apprised defendant of their progress on the

painting project and defendant provided instructions for completing

the work. Although several of the statements in plaintiff’s affidavit

constitute hearsay, it is well established that “ ‘hearsay evidence

may be considered in opposition to a motion for summary judgment,’

provided that it is not the only proof relied upon by the opposing

party” (X-Med, Inc. v Western N.Y. Spine, Inc., 74 AD3d 1708, 1710). 

Here, plaintiff also averred that he spoke with defendant two days

before the accident and, at that time, defendant gave plaintiff and

his coworker permission to remove copper wire from the house before it

was demolished and told plaintiff that “there was additional work he

needed . . . done on the premises.”

Contrary to the contention of defendant, plaintiff’s statement in

his affidavit that defendant told him, on the day of the copper

removal, that he had “additional work” on the premises does not

contradict plaintiff’s deposition testimony that he learned of the

painting project through his coworker. Indeed, plaintiff was not

questioned at his deposition with respect to any conversations that he

may have had with defendant on the day of the copper removal. We thus

conclude that plaintiff’s affidavit “is not merely an attempt to raise

a feigned issue of fact” (Schwartz v Vukson, 67 AD3d 1398, 1400; see

Hernandez v Bethel United Methodist Church of N.Y., 49 AD3d 251, 253).

Entered: June 17, 2011 Patricia L. Morgan

Clerk of the Court