You are here: / / PLAINTIFF IN THIS LABOR LAW 240(1) AND 241(6) ACTION WAS STRUCK BY A PIPE...
,

PLAINTIFF IN THIS LABOR LAW 240(1) AND 241(6) ACTION WAS STRUCK BY A PIPE WHICH FELL AS IT WAS BEING HOISTED FROM A TRUCK; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED; PLAINTIFF’S MOTION TO ADD THE VIOLATION OF ADDITIONAL INDUSTRIAL CODE PROVISIONS TO THE BILL OF PARTICULARS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ summary judgment motion in this Labor Law 240(1) and 241(6) action should not have been granted and plaintiff’s motion to amend the bill of particulars should have been granted. Plaintiff was unloading pipes from a flatbed truck when a pipe which was being lifted by an excavator came loose and fell on plaintiff’s leg:

“With respect to falling objects, Labor Law § 240(1) applies where the falling of an object is related to ‘a significant risk inherent in . . . the relative elevation . . . at which materials or loads must be positioned or secured'” … . “[A] plaintiff must show that, at the time the object fell, it was being hoisted or secured, or that the falling object required securing for the purposes of the undertaking” … . A plaintiff must also show that “the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute” … . * * *

Supreme Court improvidently exercised its discretion in denying the plaintiff’s cross-motion pursuant to CPLR 3025(b) for leave to amend the bill of particulars to allege certain additional violations of sections of the Industrial Code with regard to the Labor Law § 241(6) cause of action. The plaintiff made a showing of merit, and the proposed amendment did not prejudice the defendants and did not involve new factual allegations or raise new theories of liability … . Castano v Algonquin Gas Transmission, LLC, 2023 NY Slip Op 00983, Second Dept 2-22-23

Practice Point: As long as no additional facts are involved, a motion to amend the pleadings to add Industrial Code violations (re: a Labor Law 241(5) action) should be granted, even after the note of issue has been filed (absent prejudice).

 

You might also like
AVILA WAS INJURED WHEN HER SPOUSE LOST CONTROL OF THE CAR AND STRUCK A PARKED CAR; THE POLICY EXPRESSLY STATED COVERAGE DID NOT EXTEND TO THE INSURED’S SPOUSE; IN THE ABSENCE OF AN EXPRESS PROVISION THE INSURER IS NOT REQUIRED TO COVER THE INSURED’S SPOUSE (SECOND DEPT).
MATERNAL GRANDMOTHER WAS A PERSON LEGALLY RESPONSIBLE FOR THE CARE OF THE CHILD AND THEREFORE WAS SUBJECT TO A NEGLECT FINDING (SECOND DEPT).
PLAINTIFF IN THIS LABOR LAW 240(1) ACTION FELL FROM AN INVERTED BUCKET HE WAS STANDING ON TO REACH A POWER CABLE; DEFENDANTS DEMONSTRATED THERE WAS NO NEED FOR PLAINTIFF TO ELEVATE HIMSELF TO DO HIS JOB; THEREFORE PLAINTIFF WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY (SECOND DEPT).
IN THIS MEDICAL MALPRACTICE ACTION, DEFENDANTS’ EXPERTS DID NOT ADDRESS ALL THE ALLEGATIONS IN THE BILLS OF PARTICULARS AND RELIED ON A DISPUTED FACT; DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Criteria for Prohbition and Mandamus Actions Explained
DERIVATIVE NEGLECT FINDING STEMMING FROM A MOTION FOR SUMMARY JUDGMENT REVERSED; MOTHER HAD SUCCESSFULLY PARTICIPATED IN MENTAL HEALTH TREATMENT SINCE THE NEGLECT FINDINGS WITH RESPECT TO THE OLDER CHILDREN (SECOND DEPT).
DEFENDANT CLAIMED HE TOOK POSSESSION OF THE VICTIM’S GUN AND FIRED AFTER THE VICTIM FIRED AT HIM; DEFENDANT WAS ACQUITTED OF ATTEMPTED MURDER, ATTEMPTED ASSAULT AND ASSAULT BUT CONVICTED OF CRIMINAL POSSESSION OF A WEAPON; THE JURY SHOULD HAVE BEEN INSTRUCTED ON “TEMPORARY LAWFUL POSSESSION OF A WEAPON;” NEW TRIAL ORDERED (SECOND DEPT).
PLAINTIFFS’ MOTION FOR JUDGMENT AS A MATTER OF LAW PURSUANT TO CPLR 4401 PROPERLY GRANTED ON THE LABOR LAW 240(1) CAUSE OF ACTION, JURY HAD FOUND THE LABOR LAW 240(1) VIOLATION WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT.

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

QUESTION OF FACT WHETHER THE POLICE OFFICER ACTED IN RECKLESS DISREGARD FOR... SUPREME COURT HAD THE POWER TO APPOINT THE PUBLIC ADMINISTRATOR TO REPRESENT...