You are here: / / PLAINTIFF WAS NOT WEARING A HARNESS AND FELL FROM A ROOF; THE FACT THAT...

PLAINTIFF WAS NOT WEARING A HARNESS AND FELL FROM A ROOF; THE FACT THAT HARNESSES MAY HAVE BEEN AVAILABLE DID NOT RAISE A QUESTION OF FACT SUFFICIENT TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Although plaintiff was a ground worker the on roofing job, he fell from the roof alleging that a toe board “gave out.” The fact that plaintiff was not wearing a harness, in the face of allegations harnesses were available, was not enough to defeat plaintiff’s motion. The dissenters argued the evidence that all the toe boards were in tact after the accident raised a question of fact whether that safety device failed:

… [P]laintiff met his initial burden on that part of the motion by establishing that his ” injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential’ ” … . Specifically, plaintiff submitted his deposition testimony, wherein he stated that the toe board failed, causing him to fall from the roof. He also testified that he was not provided with a harness and that there were no available harnesses nearby. …

The ” presence of [other safety devices] somewhere at the worksite’ does not [alone] satisfy defendants’ duty to provide appropriate safety devices” … . …

… “[T]he mere failure by plaintiff to follow safety instructions” does not render plaintiff the sole proximate cause of his injuries  … . The evidence presented by defendants established only that plaintiff possibly failed to follow safety instructions, not that he outright refused to “use available, safe and appropriate equipment” … . Defendants failed to demonstrate that plaintiff ” chose for no good reason not to’ ” wear a safety harness … . At most, plaintiff’s “alleged conduct would amount only to comparative fault and thus cannot bar recovery under the statute” … . Schutt v Bookhagen, 2020 NY Slip Op 04651, Fourth Dept 8-20-20

 

You might also like
SCHOOL DISTRICT’S TERMINATION OF A CERTAIN HEALTH INSURANCE OPTION FOR RETIREES WAS NOT QUASI-LEGISLATIVE, THEREFORE MAILING THE NOTIFICATION LETTER DID NOT TRIGGER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 CONTESTING THE ACTION.
THE ARBITRATOR’S DECISION TO OVERLOOK AN INSTANCE OF TARDINESS (ONE MINUTE LATE DUE TO A DISABLED TRAIN BLOCKING TRAFFIC) WHICH OTHERWISE WOULD REQUIRE THE GRIEVANT’S TERMINATION WAS NOT IRRATIONAL AND DID NOT EXCEED THE ARBITRATOR’S ENUMERATED POWERS (FOURTH DEPT).
QUESTIONS OF FACT ABOUT WHETHER THE INSURER IS ESTOPPED FROM DENYING COVERAGE TO A PARTY LISTED AS AN ADDITIONAL INSURED IN A CERTIFICATE OF INSURANCE (FOURTH DEPT).
DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF FELL WAS LAST CLEANED OR INSPECTED; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).
THE STATUTE OF LIMITATIONS IN THIS FORECLOSURE ACTION STARTED ANEW WHEN DEFENDANT MADE A PARTIAL PAYMENT; DEFENDANT WAIVED THE LACK OF STANDING DEFENSE (FOURTH DEPT).
IF A DEFENDANT IS NOT SENTENCED AS A PREDICATE FELON THE MINIMUM SENTENCE MUST BE ONE-THIRD OF THE MAXIMUM, NOT ONE-HALF AS IT WAS HERE, AN APPELLATE COURT CAN NOT LET AN ILLEGAL SENTENCE STAND (FOURTH DEPT).
In a Partition Action, Tenant in Common Not Liable to Other Tenants in Common for Use and Occupancy of the Property/Tenant in Common Entitled to Reimbursement from Other Tenants in Common for Taxes and Repairs
PLAINTIFF ENTITLED TO JURISDICTIONAL DISCOVERY WITH RESPECT TO DEFENDANT HOSPITAL IN THIS MEDICAL MALPRACTICE ACTION; HOSPITAL DID NOT CONSENT TO JURISDICTION BY REGISTERING AS A FOREIGN CORPORATION; DOCTORS DID NOT CONSENT TO JURISDICTION BY BECOMING LICENSED IN NEW YORK (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE TOWN’S APPROVAL OF CHANGES TO A WIND-TURBINE PROJECT WITHOUT A SECOND... BECAUSE PLAINTIFF’S EXPERT AFFIDAVIT IN RESPONSE TO DEFENDANT’S...