In Heer v. North Moore St. Devs., L.L.C. (61 AD3d 617, 618, 878 N.Y.S.2d 310 [1st Dept 2009]), a case relied upon by plaintiffs, the plaintiff's co-worker stated that he heard the plaintiff's fellow bricklayers yelling that the plaintiff had fallen backwards off a sidewalk bridge at the work site.

The co-worker rushed to the plaintiff's aid and found the plaintiff lying on the ground near the building, near a gap between the sidewalk bridge and the building (id.).

The First Department held that the plaintiff was entitled to summary judgment on the issue of liability under Labor Law § 240 (1), reasoning that "the lack of witnesses to the accident and plaintiff's inability to recall how the accident happened notwithstanding, plaintiff submitted sufficient admissible proof to establish prima facie that his head injury was the result of a fall from a sidewalk bridge at his work site," and that he was not provided with any devices to protect him from such an elevation-related hazard (id. at 617-618).

Specifically, the Court noted that "since the record affords no basis for any conclusion other than that the bricklayer's exclamations were 'made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication,' the exclamations were admissible as excited utterances" (id. at 618.)