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FALL FROM A SCAFFOLD DID NOT WARRANT SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF DID NOT DEMONSTRATE THE FAILURE TO PROVIDE PROPER PROTECTION.

The Second Department determined summary judgment should not have been granted to plaintiff on his Labor Law 240 (1) cause of action. Plaintiff fell from a scaffold but his papers did not make out a prima facie case:

To establish liability pursuant to Labor Law § 240(1), a plaintiff must show that the statute was violated, and that the violation was a proximate cause of his or her injuries … . The mere fact that a plaintiff fell from a scaffold ” does not establish, in and of itself, that proper protection was not provided, and the issue of whether a particular safety device provided proper protection is generally a question of fact for the jury'” … . Here, the plaintiff’s own submissions demonstrated the existence of triable issues of fact as to how the accident occurred and it cannot be concluded, as a matter of law, that the alleged failure to provide him with protection proximately caused his injuries … . Karwowski v Grolier Club of City of N.Y., 2016 NY Slip Op 07625, 2nd Dept 11-16-16

LABOR LAW-CONSTRUCTION LAW (FALL FROM A SCAFFOLD DID NOT WARRANT SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF DID NOT DEMONSTRATE THE FAILURE TO PROVIDE PROPER PROTECTION)/SCAFFOLDS (FALL FROM A SCAFFOLD DID NOT WARRANT SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF DID NOT DEMONSTRATE THE FAILURE TO PROVIDE PROPER PROTECTION)

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THE JUDGE SHOULD NOT HAVE DISMISSED DEFENDANTS’ AFFIRMATIVE DEFENSES BECAUSE PLAINTIFF DID NOT REQUEST THAT RELIEF (SECOND DEPT).
CONFLICTING EXPERT OPINIONS PRECLUDED SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).
SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS.
PLAINTIFF’S DECEDENT WAS SHOT IN A DARK AREA OF DEFENDANT NEW YORK CITY HOUSING AUTHORITY’S (NYCHA’S) APARTMENT COMPLEX; THE NOTICE OF CLAIM ALLEGED THE LACK OF LIGHTING CONSTITUTED NEGLIGENT SECURITY; THE ADDITIONAL ALLEGATIONS OF SECURITY-RELATED NEGLIGENCE IN THE BILL OF PARTICULARS SHOULD HAVE BEEN STRUCK (SECOND DEPT).
THE SEPARATION AGREEMENT PROVIDED THAT THE PARTIES “SHALL” CONSULT EACH OTHER ON HEALTH DECISIONS FOR THE CHILD BUT FATHER HAD THE CHILD INOCULATED WITHOUT CONSULTING MOTHER; BECAUSE THE PARTIES AGREED THE CHILD WOULD ATTEND PUBLIC SCHOOL, AND INOCULATION IS REQUIRED BY THE PUBLIC HEALTH LAW, MOTHER DID NOT DEMONSTRATE SHE WAS PREJUDICED BY THE BREACH OF THE SEPARATION AGREEMENT; THEREFORE MOTHER’S MOTION TO HOLD HUSBAND IN CONTEMPT WAS PROPERLY DENIED (SECOND DEPT).
PLAINTIFF ALLEGED CONSTRUCTION WORK ON DEFENDANT’S PROPERTY CAUSED WATER TO ENCROACH ON PLAINTIFF’S PROPERTY; THE NEGLIGENCE ACTION WAS TIME-BARRED BECAUSE THE CONSTRUCTION WORK WAS DONE MORE THAN THREE YEARS BEFORE THE ACTION WAS FILED; THE RELATED NUISANCE AND TRESPASS ACTIONS WERE NOT TIME-BARRED BECAUSE THEY MAY CONSTITUTE “CONTINUING WRONGS” (SECOND DEPT). ​
GALLBLADDER SURGERY WAS PERFORMED ON PLAINTIFF, BUT HER GALLBLADDER HAD BEEN REMOVED YEARS BEFORE; THE DOCTORS APPARENTLY DID NOT REVIEW THE AVAIABLE MEDICAL RECORDS; THE RADIOLOGIST DID NOT DISCOVER THAT THE GALLBLADDER WAS ABSENT; THE DOCTORS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
SECOND RISK ASSESSMENT PROCEEDING, IN A DIFFERENT COUNTY, BASED UPON THE SAME RISK ASSESSMENT INSTRUMENT, SHOULD NOT HAVE BEEN HELD.

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