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QUESTION OF FACT WHETHER SAFETY DEVICES FOR LIFTING HEAVY MOTOR WERE AVAILABLE, PLAINTIFFS’ MOTION OF SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department determined there was a question of fact whether safety devices were available precluded granting plaintiffs’ motion for summary judgment on the Labor Law 240 (1) cause of action. Plaintiff was injured lifting a heavy motor onto a scissor lift. Defendant’s foreman testified he had never manually lifted a motor onto a scissors lift and safety devices for lifting the motor must have been available:

In support of the motion, plaintiffs submitted the deposition testimony of plaintiff set forth above, as well as that of his coworker and a foreman. Plaintiff’s coworker testified that he had performed work on 30 or 40 such doors and had manually lifted the motor onto a scissor lift every time. Conversely, the foreman, who was not on location on the date of the injury, testified that he had performed work on “over a thousand” such doors and had “never lifted a motor manually onto a scissor lift.” The foreman found it “hard to believe” that hoists, blocks, pulleys, ropes, or other safety devices were not available on site.

We conclude that plaintiffs failed to meet their initial burden on their motion inasmuch as their evidentiary submissions created issues of fact whether plaintiff’s “injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” … . Smiley v Allgaier Constr. Corp., 2018 NY Slip Op 04130, Fourth Dept 6-8-18

​LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER SAFETY DEVICES FOR LIFTING HEAVY MOTOR WERE AVAILABLE, PLAINTIFFS’ MOTION OF SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

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