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“Sole Proximate Cause” Defense Not Demonstrated

In reversing Supreme Court and granting plaintiff’s motion for summary judgment, the First Department determined the facts did not support the defense that plaintiff was the sole proximate cause of the accident. Plaintiff was injured when a drill rig fell after safety chains had been removed. The First Department determined the facts demonstrated plaintiff was not solely responsible for removing the safety chains and, therefore, the “sole proximate cause” defense was not available:

The sole proximate cause defense generally applies where the worker misused, removed, or failed to use an available safety device that would have prevented the accident, or knowingly chose to use an inadequate device despite the availability of an adequate device …. However, “the Labor Law does not require a plaintiff to have acted in a manner that is completely free from negligence” … .

Plaintiff did not unilaterally elect to remove the chains and chain binders. Clark, the dock builder foreman who had the discretion to make the determination in the field as to the manner in which the drill rig would be moved, determined that the drill rig could not be pivoted with the chain binders attached, a belief plaintiff shared … .  Boyd v Schiavone Constr Co, Inc, 2013 NY Slip Op 03578, 1st Dept, 5-16-13

 

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DEFENDANT DID NOT UPDATE ITS ADDRESS FILED WITH THE SECRETARY OF STATE FOR SERVICE OF PROCESS AND DID NOT HAVE A REASONABLE EXCUSE FOR DEFAULT IN THIS SLIP AND FALL CASE; HOWEVER, NO REASONABLE EXCUSE NEED BE SHOWN IN A MOTION TO VACATE A DEFAULT PURSUANT TO CPLR 317; DEFAULT VACATED (FIRST DEPT).
PETITIONER SOUGHT RECORDS FROM THE NYC TAXI AND LIMOUSINE COMMISSION (TLC) TO DETERMINE HOW THE COMMISSION WAS HANDLING LICENSE APPLICANTS WITH CRIMINAL CONVICTIONS; THE REQUEST SHOULD NOT HAVE BEEN DENIED; MATTER REMITTED FOR IN CAMERA REVIEW (FIRST DEPT).
REFORMATION OF CONTRACT TO CORRECT THE NAMING OF THE WRONG PARTY TO BE INDEMNIFIED, A MUTUAL MISTAKE, SHOULD HAVE BEEN ALLOWED.
DEFENDANT PROPERTY OWNER DEMONSTRATED THAT THE STORM IN PROGRESS DOCTRINE APPLIED IN THIS SLIP AND FALL CASE (A PROPERTY OWNER WILL NOT BE LIABLE FOR A SNOW AND ICE CONDITION UNTIL A REASONABLE TIME AFTER THE PRECIPITATION HAS STOPPED); THE BURDEN THEN SHIFTED TO PLAINTIFF TO SHOW DEFENDANT’S EFFORT TO REMOVE SNOW HOURS BEFORE THE FALL CREATED THE DANGEROUS CONDITION; TO MEET THAT BURDEN AN EXPERT AFFIDAVIT SHOULD HAVE BEEN, BUT WAS NOT, SUBMITTED (FIRST DEPT).
BECAUSE LOOSE PLANKS ON A SCAFFOLD CONSTITUTED A PROXIMATE CAUSE OF PLAINTIFF’S FALL IN THIS LABOR LAW 240(1) ACTION, PLAINTIFF’S ACTS OR OMISSIONS COULD NOT BE THE SOLE PROXIMATE CAUSE OF THE FALL AND THE RECALCITRANT WORKER DEFENSE WAS NOT AVAILABLE (FIRST DEPT). ​
A FALL OF 2O TO 25 FEET FROM A RAMP USED TO TRANSPORT MATERIALS IS COVERED BY LABOR LAW 240(1) (FIRST DEPT.)
FAMILY COURT SHOULD NOT HAVE RELIED SOLELY ON THE IN CAMERA INTERVIEW WITH THE EIGHT-YEAR-OLD CHILD IN THIS MODIFICATION OF CUSTODY CASE, MATTER REMITTED (FIRST DEPT). ​

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