You are here: / / PLAINTIFF WAS STRUCK BY A CABLE WHICH WHIPLASHED WHEN A TRUCK RAN INTO...

PLAINTIFF WAS STRUCK BY A CABLE WHICH WHIPLASHED WHEN A TRUCK RAN INTO IT; THE INDUSTRIAL CODE PROVISION REQUIRING SAFETY MEASURES WHEN WORKING NEAR TRAFFIC APPLIED; THE LABOR LAW 241(6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the Labor Law 241(6) cause of action should not have been dismissed. Plaintiff was injured when a truck struck a cable which whiplashed and struck plaintiff. It was alleged Industrial Code section 12 NYCRR 23-1.29(a) was violated. That Code provision reads: “Whenever any construction, demolition or excavation work is being performed over, on or in close proximity to a street, road, highway or any other location where public vehicular traffic may be hazardous to the persons performing such work, such work area shall be so fenced or barricaded as to direct such public vehicular traffic away from such area, or such traffic shall be controlled by designated persons:”

… [T]here is no dispute that the Industrial Code section upon which plaintiff relies is sufficiently specific to support a Labor Law § 241 (6) claim. In addition, the facts show plaintiff was still engaged in construction, aloft in a lift bucket and tightening a newly installed steel cable wire, in close proximity to public vehicular traffic on a roadway, when a moving truck struck the cable that was installed in an underpass area and caused the cable to whiplash and strike plaintiff. At the time, there was no flag person or erected barricades to control traffic in the work area. Accordingly, the evidence established that 12 NYCRR 23-1.29(a) was violated and that this violation was a proximate cause of plaintiff’s injuries. Thus, the court should have granted plaintiff’s motion for partial summary judgment on the Labor Law § 241(6) claim, as plaintiff was not required to demonstrate freedom from comparative fault in order to be awarded summary judgment on that claim … . Bucci v City of New York, 2024 NY Slip Op 00124, First Dept 1-11-24

Practice Point: Here a truck ran into a cable which whiplashed and struck plaintiff. The Industrial Code provision requiring safety measures, such as flagmen or barriers, when working in the vicinity of traffic applied and supported the Labor Law 241(6) cause of action.

 

You might also like
FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT).
MOVING PARTY CANNOT RELY ON GAPS IN OPPOSING PARTY’S PROOF IN MOTIONS AND CROSS-MOTIONS FOR SUMMARY JUDGMENT; WITNESS-CREDIBILITY SHOULD NOT BE TAKEN INTO ACCOUNT AT THE SUMMARY JUDGMENT STAGE.
ALLEGATION THE DEFENDANT-ATTORNEYS FAILED TO REFRESH THE EYEWITNESS’S RECOLLECTION LEADING TO ERRONEOUS TESTIMONY STATED A CAUSE OF ACTON FOR LEGAL MALPRACTICE.
THE TRIAL COURT AS FACT-FINDER PROPERLY ADMITTED IN EVIDENCE A PHOTOCOPY OF THE LEASE AT THE HEART OF THE DISPUTE AS AN EXCEPTION TO THE BEST EVIDENCE RULE (FIRST DEPT).
ABSENCE OF ANY MENTION OF DEFENDANT DISCARDING A WEAPON IN THE PAPERWORK RELATING TO DEFENDANT’S ARREST, AND THE DIFFERING VERSIONS OF EVENTS PRIOR TO DEFENDANT’S ARREST, RAISED A QUESTION OF FACT WHETHER THERE WAS PROBABLE CAUSE TO ARREST DEFENDANT FOR POSSESSION OF A WEAPON.
Allowing Testimony that Defendant’s Name Was Mentioned in an Out-of-Court Conversation About the Underlying Assault Was (Harmless) Error/The Confrontation Clause Was Not Implicated Because the Hearsay Was Not Testimonial/Admission of the Hearsay Was Not Justified as “Completing the Narrative” or “Preventing Jury Confusion”
TWO ZONING VIOLATION SUMMONSES ADDRESSING THE SAME USE OF THE PROPERTY WERE NOT DUPLICATIVE; THEREFORE THE NYC DEPARTMENT OF BUILDINGS’ FAILURE TO APPEAL THE DISMISSAL OF THE FIRST SUMMONS DID NOT PRECLUDE THE SECOND (FIRST DEPT).
QUESTION OF FACT RAISED ABOUT WHETHER THE PROFFERED REASON FOR PLAINTIFF’S TERMINATION WAS PRETEXTUAL, PLAINTIFF WAS ON MEDICAL LEAVE BECAUSE OF BRAIN TUMORS, EMPLOYER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF FELL THROUGH THE DECK OF HER APRARTMENT; DEFENDANTS DID NOT SHOW A... PURSUANT TO THE ALCOHOLIC BEVERAGE CONTROL LAW THE DEFENDANT BEER IMPORTER IS...