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THERE WERE QUESTIONS OF FACT WHETHER THE ACCIDENT—THE COLLAPSE OF A DECK—EVER HAPPENED IN THIS LABOR LAW 24O (1) ACTION; SUPREME COURT REVERSED (FOURTH DEPT).

​The Fourth Department, reversing Supreme Court  in this Labor Law 240(1) action, determined there were questions of fact about whether the accident (the collapse of a deck) ever happened at all:

Contrary to plaintiff’s contention and the court’s determination, the assertion of defendant that an accident resulting from a collapse or dislodging of the deck as described by plaintiff and the foreman may not have occurred at all is not based on “speculation without factual support” … . Rather, defendant’s assertion is based on the supervisors’ firsthand observations of an intact deck on the morning after the alleged accident, coupled with the testimony of the foreman, which calls into question whether a repair of the deck could have been made before the supervisors’ inspection, from which a factfinder could permissibly draw the inference that the alleged collapse did not occur at all … . Hann v S&J Morrell, Inc., 2022 NY Slip Op 04447, Fourth Dept 7-8-22

Practice Point: Unusual Labor Law 240(1) case where Supreme Court granted plaintiff’s summary judgment motion but the appellate court held there were questions of fact whether the accident—the collapse of a deck—ever happened.

 

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NO DEMONSTRATION A PARTICULAR INTERPRETATION OF AN AMBIGUOUS CONTRACT WAS THE ONLY FAIR INTERPRETATION; THEREFORE MOTIONS FOR SUMMARY JUDGMENT WERE PROPERLY DENIED.
THE JUDGE IN THIS AGGRAVATED CRUELTY TO ANIMALS CASE SHOULD NOT HAVE REDUCED THE COUNTS IN THE INDICTMENT ABSENT A WRITTEN MOTION OR A WAIVER BY THE PEOPLE; THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT THE INDICTMENT; THE JUDGE SHOULD NOT HAVE DETERMINED DEFENDANT COULD NOT HAVE FORMED THE REQUISITE INTENT DUE TO MENTAL DISEASE OR DEFECT; ONLY A JURY CAN MAKE THAT DETERMINATION (FOURTH DEPT).
CONTRARY TO THE TRIAL JUDGE’S RULING, DEFENDANT HAD SATISFIED THE FIRST STEP OF A BATSON CHALLENGE TO THE PEOPLE’S STRIKING OF AN AFRICAN-AMERICAN PROSPECTIVE JUROR, THE BURDEN THEN SHIFTED TO THE PEOPLE TO ARTICULATE A NONDISCRIMINATORY REASON, THE MATTER IS SENT BACK FOR A DETERMINATION OF THE BATSON CHALLENGE USING THE CORRECT PROCEDURE (FOURTH DEPT).
BASED ON THE PEOPLE’S THEORY, THE JURY SHOULD NOT HAVE BEEN INSTRUCTED POSSESSION OF A WEAPON IS PRESUMPTIVE EVIDENCE OF AN INTENT TO USE IT UNLAWFULLY AGAINST ANOTHER; DEFENDANT’S REQUEST TO CALL A WITNESS SHOULD NOT HAVE BEEN DENIED; DEFENDANT’S REQUEST FOR $1000 TO HIRE A PSYCHIATRIC EXPERT SHOULD NOT HAVE BEEN DENIED; NEW TRIAL ORDERED (FOURTH DEPT). ​
TEMPORARY ROAD WORK TRAFFIC CONTROL MAY HAVE FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE DRIVER STRIKING THE PEDESTRIAN PLAINTIFF, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED TO THE ROAD WORK DEFENDANTS (FOURTH DEPT))
IN THIS COMBINED ARTICLE 78 AND DECLARATORY JUDGMENT ACTION, THE FOUR-MONTH STATUTE OF LIMITATIONS APPLICABLE TO ARTICLE 78 DID NOT APPLY TO THE DECLARATORY JUDGMENT ACTION WHICH ONLY INVOLVED PRIVATE PARTIES, NOT A GOVERNMENT BODY OR OFFICER (FOURTH DEPT).
JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION, NEW TRIAL ORDERED.
DEFENDANT DRIVER RAISED A QUESTION OF FACT WHETHER THE CAUSE OF THE ACCIDENT WAS BLACK ICE, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, DEFENDANT’S MOTION TO AMEND THE PLEADINGS TO ADD THE EMERGENCY DOCTRINE DEFENSE SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

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