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AFTER THE JURY HAD FOUND DEFENDANT DID NOT VIOLATE LABOR LAW 240 (1), THE APPELLATE COURT DETERMINED PLAINTIFF SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION AT THE OUTSET, PLAINTIFF FELL FROM A LADDER WHEN THE LADDER SHIFTED.

After a full trial the jury found defendant did not violate Labor Law 240 (1) and awarded damages on plaintiff’s Labor Law 241 (6) cause of action. Plaintiff had fallen from a ladder when it shifted. The Second Department determined plaintiff’s motion for summary judgment on the Labor Law 240 (1) cause of action should have been granted at the outset. Because the jury apportioned fault, the damages had to be revamped because comparative fault does not apply to a Labor Law 240 (1) cause of action. The court noted that plaintiff’s undocumented immigrant status and the fact he did not pay taxes and used a coworker’s name, issues raised by the defendant (apparently in opposition to plaintiff’s summary judgment motion), had no relevance to credibility as to any material fact:

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Before the matter proceeded to a trial on the issue of liability, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the issue of liability on his Labor Law § 240(1) cause of action. The plaintiff established his prima facie entitlement to judgment as a matter of law through his deposition testimony, which indicated that he was working on an unsecured ladder that moved while he was standing on it … . In opposition, Drake, which submitted only an attorney’s affirmation, failed to raise a triable issue of fact … . Contrary to Drake’s contention, the fact that the plaintiff was an undocumented immigrant who failed to pay taxes and had used a coworker’s name to obtain health insurance immediately following the accident does not present an issue relating to the plaintiff’s credibility as to any material fact … .

Further, as “contributory negligence will not exonerate a defendant who has violated [Labor Law § 240(1)] and proximately caused a plaintiff’s injury” … , the jury’s finding of comparative fault, and the corresponding reduction in the damages awarded to the plaintiff, must be vacated. Cano v Mid-Valley Oil Co., Inc., 2017 NY Slip Op 04419, 2nd Dept 6-7-17

 

LABOR LAW-CONSTRUCTION LAW (AFTER THE JURY HAD FOUND DEFENDANT DID NOT VIOLATE LABOR LAW 240 (1), THE APPELLATE COURT DETERMINED PLAINTIFF SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION AT THE OUTSET, PLAINTIFF FELL FROM A LADDER WHEN THE LADDER SHIFTED)/LADDERS (LABOR LAW-CONSTRUCTION LAW, AFTER THE JURY HAD FOUND DEFENDANT DID NOT VIOLATE LABOR LAW 240 (1), THE APPELLATE COURT DETERMINED PLAINTIFF SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION AT THE OUTSET, PLAINTIFF FELL FROM A LADDER WHEN THE LADDER SHIFTED)

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BY ENTERING A STIPULATION SETTLING A FORECLOSURE ACTION, DEFENDANT WAIVED ANY DEFECT IN SERVICE OF THE COMPLAINT, THE STIPULATION WAS VALID EVEN THOUGH IT DID NOT OCCUR IN COURT, EMAILS AND PAYMENT OF A SETTLEMENT AMOUNT MEMORIALIZED THE STIPULATION (SECOND DEPT).
THE DEFAULTING DEFENDANT WHOSE ANSWER HAD BEEN STRUCK WAS NOT ENTITLED TO FURTHER DISCOVERY PRIOR TO THE INQUEST ON DAMAGES (SECOND DEPT).
THE BANK’S EVIDENCE OF STANDING DID NOT INCLUDE THE BUSINESS RECORDS REFERRED TO IN THE LOAN SERVICER’S AFFIDAVIT, RENDERING THE AFFIDAVIT HEARSAY; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
NO ONE AT THE DEFENDANT HEALTH CLUB WHEN PLAINTIFF’S DECEDENT SUFFERED A HEART ATTACK WAS CERTIFIED TO PROVIDE EMERGENCY AID AND THE EMPLOYEE DELAYED CALLING 911; PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANTS DID NOT DEMONSTRATE, PRIMA FACIE, THE UNEVEN SEWER GRATE WAS A TRIVIAL DEFECT; THEREFORE THE BURDEN OF PROOF NEVER SHIFTED TO THE PLAINTIFF; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
THE ELECTRICAL STUB UP OVER WHICH PLAINTIFF TRIPPED IN THIS LABOR LAW 241(6) ACTION WAS AN INTEGRAL PART OF THE CONSTRUCTION; THE INDUSTRIAL CODE PROVISIONS REQUIRING PASSAGEWAYS TO BE KEPT CLEAR OF DEBRIS GENERALLY DO NOT APPLY TO AN OBSTRUCTION WHICH IS AN INTEGRAL PART OF CONSTRUCTION; HERE THE FAILURE TO PROVIDE SAFETY MARKERS CALLING ATTENTION TO THE STUB UPS APPARENTLY BROUGHT THE FACTS WITHIN THE REACH OF THOSE “KEEP PASSAGEWAYS FREE OF DEBRIS” CODE PROVISIONS (SECOND DEPT). ​
DEFENDANT LANDLORD’S SUMMARY JUDGMENT MOTION IN THIS SIDEWALK SLIP AND FALL CASE RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANT HAD TRANSFERRED RESPONSIBILITY FOR SNOW AND ICE REMOVAL IN THE AREA OF THE FALL TO PLAINTIFF TENANT AND WHETHER DEFENDANT HAD ACTUAL KNOWLEDGE OF THE RECURRING COLLECTION OF WATER AND ICE IN THE AREA OF THE FALL (SECOND DEPT).
‘ANDERS’ BRIEF DEFICIENT; NEW COUNSEL ASSIGNED FOR THE APPEAL (SECOND DEPT).

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