In Kelvin Mejia Reyes v. Astoria West, LLC et ano., Index No.814329/22E (Sup. Ct. Bronx), Plaintiff appealed the lower court’s decision & order which denied Plaintiff’s motion for summary judgment on his Labor Law 240(1) claim. 

Plaintiff claimed that he fell from a height---i.e. from a pile of sheetrock in the performance of his work.  In opposition, Ms. Creegan submitted portions of Plaintiff’s post-accident medical records documenting statements he made to medical personnel wherein he detailed what happened at the time of the alleged incident, i.e., that he tripped and rolled his ankle. The Supreme Court determined that the contradictory accounts concerning how the accident occurred, together with issues regarding Plaintiff’s credibility, precluded a finding of summary judgment in Plaintiff’s favor on his Labor Law § 240(1) claim. Specifically, the Court stated that,  “there are several material issues of fact regarding the circumstances that caused the accident and the credibility of Plaintiff. The contradictory versions of how the accident occurred preclude a finding of summary judgment for a violation of Labor Law § 240(1)."  

On appeal to the First Department, Plaintiff’s counsel argued for the first time that the Plaintiff’s statements in the medical records should not have been considered because he does not speak English and he was provided with a translator at the hospital.  In response, Ms. Creegan immediately filed a motion with the Appellate Court for an order striking this portion of Plaintiff-Appellant’s brief as the argument was not made before the lower court and therefore was not an issue for appellate review.  In addition to not being properly before the Appellate Court, Ms. Creegan pointed to the portions of the subject hospital records which expressly document that Plaintiff was offered the assistance of a translator and declined the offer because he speaks English.   

Alternatively, Ms. Creegan argued that to the extent the Appellate Court permitted Plaintiff to make  such a new argument on appeal, the Appellate Court should allow the Defendant-Respondent to enlarge the record with the submission of a recorded news broadcast wherein Plaintiff is clearly depicted speaking in English, which is directly relevant to the issue Plaintiff raised for the first time on appeal concerning his claimed inability to understand and communicate in English at the time that he provided contradictory statements about the alleged accident to medical personnel.

In its Order dated October 8, 2026 (Case No. 2025-06193), the Appellate Division First Department agreed that Plaintiff cannot raise, for the first time on appeal, the argument that he lacked a translator and is not able to understand English in granting that portion of Ms. Creegan’s motion for an Order striking this new argument from his brief and directing Plaintiff to file a corrected brief omitting said Point.