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PLAINTIFF DID NOT CITE A VIOLATION OF ANY INDUSTRIAL CODE PROVISION IN THE COMPLAINT OR BILL OF PARTICULARS, WHICH WOULD ENTITLE DEFENDANT TO SUMMARY JUDGMENT ON THE LABOR LAW 241(6) CAUSE OF ACTION; HOWEVER PLAINTIFF SHOULD HAVE BEEN ALLOWED TO AMEND THE BILL OF PARTICULARS TO ADD A CODE VIOLATION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff should have been allowed to amend the bill of particulars to allege a violation of an Industrial Code provision describing the construction of platforms. Plaintiff was walking on a rebar mat when he fell. The rebar mat could be considered to be a “platform” which, under the Industrial Code, requires planking:

Regarding the Labor Law § 241(6) claim, defendants “made a prima facie showing of entitlement to [summary] judgment” because “plaintiff did not cite any Industrial Code provision that allegedly was violated here in his complaint [or] bill of particulars” … . “However, this failure is not necessarily fatal to a section 241(6) claim and, in the absence of unfair surprise or prejudice, may be rectified by amendment, even where a note of issue has been filed” … . Plaintiff, in seeking to amend the bill of particulars, asserted a violation of Industrial Code § 23-1.22(c)(1), which requires that “[a]ny platform used as a working area or used for the unloading of wheelbarrows, power buggies, hand carts or hand trucks” to “be provided with a floor of planking at least two inches thick full size, exterior grade plywood at least three-quarters inch thick or metal of equivalent strength.” “[T]he platforms contemplated by that section are those used to transport vehicular and/or pedestrian traffic” … . Since it is uncontroverted that plaintiff was traversing the rebar mat carrying more rebar, and workers were expected to walk over the rebar mat, there is at least an issue of fact as to whether the rebar mat qualified as a platform used to transport pedestrian traffic. Plaintiff’s “belated identification of th[is] section[] entails no new factual allegations, raises no new theories of liability, and results in no prejudice to the defendant[s]” … . Thus, plaintiff is granted leave to amend his bill of particulars on this point, and summary judgment dismissing the § 241(6) claim is denied. Marte v Tishman Constr. Corp., 2024 NY Slip Op 00231, First Dept 1-18-24

Practice Point: Here in this Labor Law 240(1) action, plaintiff was allowed to amend his bill of particulars to cite a violation of the Industrial Code. Where there is no prejudice this type of amendment can be allowed even after the note of issue is filed.

 

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PLAINTIFF NEED NOT SHOW LADDER WHICH FELL WAS DEFECTIVE TO BE ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION.
THE DENIAL OF DEFENDANT’S PETITION FOR A DE NOVO JURY TRIAL TO DETERMINE WHETHER HE IS MENTALLY ILL IS APPEALABLE AS OF RIGHT AND THE PETITION SHOULD HAVE BEEN GRANTED, AN EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED AND DEFENSE COUNSEL’S STATEMENTS AND THE DEFENSE EXPERT’S TESTIMONY AT THE HEARING TO THE EFFECT DEFENDANT WAS MENTALLY ILL DID NOT CONSTITUTE A WAIVER OF THE DEFENDANT’S RIGHT TO A DE NOVO TRIAL (FIRST DEPT).
JUDGE PROPERLY SET ASIDE THE VERDICT AWARDING $0 FOR FUTURE PAIN AND SUFFERING IN THIS LABOR LAW 240 (1) ACTION DESPITE PLAINTIFF’S FAILURE TO OBJECT TO THE VERDICT AS INCONSISTENT (FIRST DEPT).
Contract with Construction Manager Did Not Give the Manager Sufficient Supervisory Control to Impose Liability Under Labor Law 200, 240 (1) or 246 (1)
THE CERTIFICATION OF ACKNOWLEDGMENT IS PRIMA FACIE EVIDENCE THE DECEDENT EXECUTED THE CONTRACT, BUT THAT EVIDENCE CREATES ONLY A REBUTTABLE PRESUMPTION; PLAINTIFF PRESENTED SUFFICIENT EVIDENCE TO RAISE A QUESTION OF FACT WHETHER DECEDENT SIGNED THE AGREEMENT (FIRST DEPT).
THE INDICTMENT CHARGED DEFENDANT WITH ASSAULT SECOND AND ATTEMPTED ASSAULT SECOND BUT DID NOT ALLEGE THE USE OF A DEADLY WEAPON OR A DANGEROUS INSTRUMENT; THE PEOPLE’S THEORY AT TRIAL WAS DEFENDANT USED A PVC PIPE AS A DEADLY WEAPON OR A DANGEROUS INSTRUMENT; BUT, TO CORRECT THE FLAWED INDICTMENT, THE JUDGE, A DAY BEFORE THE END OF THE TRIAL, AMENDED THE INDICTMENT TO CHARGE ASSAULT THIRD AND ATTEMPTED ASSUALT THIRD; THE AMENDMENT PREJUDICED THE DEFENDANT (FIRST DEPT).
RECORDS OF PROCEEDINGS BEFORE THE CIVILIAN COMPLAINT REVIEW BOARD ARE POLICE OFFICER PERSONNEL RECORDS WHICH ARE EXEMPT FROM A FREEDOM OF INFORMATION LAW REQUEST.
WHEN THE CONTRACTOR’S EMPLOYEE ARRIVED TO CLEAN THE TANK, THE OPENING WAS COVERED ONLY BY CARDBOARD; AFTER FINISHING THE WORK, THE EMPLOYEE REPLACED THE CARDBOARD COVER; PLAINTIFF SUBSEQUENTLY STEPPED ON THE CARDBOARD AND FELL INTO THE TANK; THE CONTRACTOR’S EMPLOYEE DID NOT LAUNCH AN INSTRUMENT OF HARM WITHIN THE MEANING OF ESPINAL, 98 NY2D 140 (FIRST DEPT).

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