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QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF’S INJURY WAS DUE TO DEFENDANTS’ FAILURE TO PROVIDE HIM WITH THE PROPER PROTECTIVE DEVICES PRECLUDED SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) ACTION; THE DISSENT DISAGREED; A STACK OF CONCRETE BOARDS FELL OFF A TRUCK ONTO PLAINTIFF WHEN THE SKIDS UNDER THE BOARDS BROKE (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, determined plaintiff was not entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was injured when a stack of cement boards fell off a truck onto him after the skids under the concrete boards broke:

Plaintiff failed to demonstrate conclusively that the accident was proximately caused by [defendants’] failure to provide him with proper protective devices for the performance of his work. The load of cement boards atop the pallet jack did not fall because of an inadequacy or deficiency in the pallet jack but, rather, because the wooden skids underneath the load of cement boards broke, causing the load to fall from the pallet jack. Coupled with the dispute as to whether plaintiff was permitted to use the street level hoist for the delivery of cement boards, this evidence renders it impossible to determine as a matter of law that [defendants] failed to supply plaintiff with adequate safety devices for the performance of his work and that this failure was a proximate cause of plaintiff’s accident … . Valle v Port Auth. of N.Y. & N.J., 2020 NY Slip Op 07685, First Dept 12-17-20

 

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IF PLAINTIFFS IN A FRAUDULENT-CONVEYANCE AND ENFORCEMENT-OF-MONEY JUDGMENT PROCEEDING CAN BE FULLY COMPENSATED BY MONEY DAMAGES, IT IS ERROR TO ISSUE A PRELIMINARY INJUNCTION (FIRST DEPT),
THE SCAFFOLD COLLAPSED ENTITLING PLAINTIFF TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; THE HEARSAY SUBMITTED IN OPPOSITION DID NOT DEFEAT THE MOTION (FIRST DEPT). ​
QUESTION OF FACT WHETHER DEFENDANT IN THIS SLIP AND FALL CASE HAD CONSTRUCTIVE KNOWLEDGE OF MELTED ICE CREAM ON THE STAIRS, THERE WAS EVIDENCE THE ICE CREAM HAD BEEN THERE FOR AT LEAST THREE HOURS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
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DEFENDANT’S STEPMOTHER COULD NOT CONSENT TO THE SEARCH OF DEFENDANT’S BACKPACK, WHICH WAS IN THE STEPMOTHER’S APARTMENT, BECAUSE THE POLICE KNEW THE BACKPACK BELONGED TO DEFENDANT; AN APPELLATE COURT DOES NOT HAVE JURISDICTION TO AFFIRM A LOWER COURT RULING ON A GROUND NOT RULED ON BY THE LOWER COURT (FIRST DEPT).
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