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PLAINTIFF’S SUMMARY JUDGMENT MOTION ON HIS LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DENIED BECAUSE IT WAS BASED ON EVIDENCE FIRST PRESENTED IN REPLY; PLAINTIFF WAS COLLATERALY ESTOPPED FROM CLAIMING TRAUMATIC BRAIN INJURY AND COGNITIVE DISORDER BY THE RULING IN HIS WORKERS’ COMPENSATION CASE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court in this construction accident case, determined plaintiff’s motion for summary judgment on his Labor Law 241(6) cause of action should not have been granted because it was based upon information raised for the first time in reply. The First Department noted that Supreme Court properly found that the ruling in plaintiff’s Workers’ Compensation case collaterally estopped plaintiff from claiming traumatic brain injury and cognitive disorder in this Labor Law action:

Supreme Court should have denied plaintiff’s motion for summary judgment with respect to Labor Law § 241(6), which was based on an expert affidavit submitted in reply. The affidavit, which constituted the first time plaintiff asserted violations of 12 NYCRR 23-2.2(a) and (b), was not addressed to the arguments made in defendants’ opposition, and instead sought to assert new grounds for the motion … .

Plaintiff is collaterally estopped from litigating his allegation that he sustained traumatic brain injury and cognitive disorder, since the allegation was previously raised and conclusively decided against him in a Workers’ Compensation Board proceeding, where plaintiff had a full and fair opportunity to litigate the issue … . Douglas v Tishman Constr. Corp., 2022 NY Slip Op 03344, First Dept 5-24-22

Practice Point: Evidence first presented in reply and which does not address anything raised by the other party’s opposition papers should not be considered by the court. A ruling in a Workers’ Compensation case, here rejecting the worker’s traumatic brain injury and cognitive disorder claims, may  preclude the same claims in a Labor Law action pursuant to the collateral estoppel doctrine.

 

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