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.