On September 25, 2019, the plaintiff was employed as a laborer by the third-party defendant, ATA Construction New York, Inc. (“ATA”), when he allegedly was injured at a construction site located at 160 Dikeman Street in Brooklyn, which was owned by the defendant 160 Dikeman Street, LLC (“160 Dikeman”). In November 2019, the plaintiff filed a lawsuit against 160 Dikeman and KSK to recover damages for personal injuries, alleging, among other things, a violation of Labor Law § 240(1).
The plaintiff testified that as he was removing a piece of sheetrock from the first-floor ceiling, the sheetrock, which weighed approximately 20 pounds, detached from the ceiling and fell on his right shoulder, which caused the ladder to shake. He further testified that he fell off the ladder, approximately seven feet, and landed on his back with the ladder and sheetrock on top of him. The co-owner of ATA testified that ATA was performing painting work, not demolition or sheetrock work, and the plaintiff was not supposed to be removing sheetrock. However, the co-owner also testified that he did not remember exactly what work the plaintiff was performing. The co-owner testified that he was not at the site at the time of the plaintiff’s alleged accident and that the plaintiff called him either the night of the alleged accident or the following day to tell him that he had been injured “pulling some [s]heetrock” and had “dropped something.”
ATA submitted a copy of the plaintiff’s Precision Pain medical records, which were certified by Precision Pain’s custodian of records. The records indicated that the plaintiff visited Precision Pain on October 3, 2019, and was examined by Dr. Daniel Khaimov. The first page of the Precision Pain medical records contains, among other things, the following statement: “Accident: Patient was on a ladder, was picking up heavy [sheetrock] and felt a pull on his lower back and R shoulder.”
In an undated order, the Supreme Court denied the plaintiff’s motion for summary judgment on the issue of liability on the causes of action alleging a violation of Labor Law § 240(1). The plaintiff appealed.
In its Opinion & Order dated July 30, 2025, the Supreme Court of the State of New York Appellate Division, Second Judicial Department stated: “as there is no dispute that the Precision Pain medical provider, Khaimov, did not have personal knowledge of how the plaintiff’s accident allegedly occurred, the challenged statement is attributable to someone else—allegedly the plaintiff—and it is hearsay within hearsay … To qualify as business records, entries in a hospital or other medical record must be made in the regular course of business of the hospital or medical provider and for the purposes of assisting in the business of that hospital or medical provider … with respect to medical records, the scope of the “business duty” of medical personnel is limited to recording information relating to diagnosis and treatment. Accordingly, the only entries in medical records that are admissible under the business records exception are those that are germane to the diagnosis or treatment of the patient … entries that are not germane to medical diagnosis and treatment “may not be regarded as having been made in the regular course of the hospital’s business” and, therefore, are not admissible under the business records exception.”
“In our view, it was germane to Khaimov’s medical diagnosis and treatment of the plaintiff that the plaintiff’s shoulder and back allegedly were injured as he was picking up a heavy object and “felt a pull” … First, the statement that the plaintiff “felt a pull” indicates the sensation that the plaintiff felt as the injury allegedly occurred … Second, the medical records themselves indicate that how the accident occurred was relevant to medical diagnosis or treatment. Among other things, on pages three and four of the medical records, Khaimov noted that the incident the “patient described” was the “competent medical cause of this injury” and that “the patient’s history of the injury” was “consistent with [his] objective findings” … Whereas the Precision Pain medical records indicated that the plaintiff was injured as he was lifting a heavy object and felt a pull, the plaintiff’s deposition testimony indicated that he was injured after he fell seven feet off a ladder. Injury and pain caused by a seven-foot fall from a ladder present different diagnostic and treatment concerns than injury and pain caused by lifting a heavy object and a “pull,” especially absent any reference to the plaintiff suffering a fall after that pull.”
“[I]t may be that whether a patient fell from a ladder that collapsed or whether he or she lost his or her balance and fell from a scaffold may not be germane to medical diagnosis and treatment … But that is not the situation here, as the challenged statement makes no mention that the plaintiff fell from any ladder or indeed fell at all.”
“Because we find that the challenged statement was germane to medical diagnosis and treatment, we conclude that it was part of Khaimov’s regular business practice to record the challenged statement … Firsthand accounts from the patient to the medical provider are presumptively reliable, as the patient has a clear motivation to report accurately … We reject the plaintiff’s contention that testimony or an affidavit from the medical provider who recorded the challenged statement was required to identify the plaintiff as the source of the challenged statement … To the extent that the First Department has held that the testimony from the medical provider who recorded the challenged statement is always necessary to establish that the patient was the source of the information, we respectfully disagree … By contrast, here, the Precision Pain medical records indicated that the plaintiff was the source of the challenged statement … When asked specifically about the challenged statement, the plaintiff did not deny making it. Instead, he testified that the doctor probably misunderstood him. Considering both the plaintiff’s deposition testimony and the statements on the third and fourth pages of the Precision Pain medical records, ATA sufficiently established that the plaintiff was the source of the information in the challenged statement.”
The New York appellate court concluded: “In this case, ATA established that the challenged statement in the Precision Pain medical records was admissible under the business records exception. The challenged statement raised a triable issue of fact as to whether the accident occurred in the manner alleged by the plaintiff … Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the issue of liability on the causes of action alleging a violation of Labor Law § 240(1).”
Source Pillco v. 160 Dikeman St., LLC, 2025 NY Slip Op 04495.
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