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IT WAS FORSEEABLE THAT A LEAKY ROOF NEEDING REPAIR WOULD COLLAPSE WHEN PLAINTIFF WAS STANDING ON IT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff, who fell when the roof he was working on collapsed, was entitled to summary judgment on his Labor Law 240(1) cause of action. The court noted the accident was foreseeable and no protective device was provided:

“‘In order for liability to be imposed under Labor Law § 240(1), there must be a foreseeable risk of injury from an elevation-related hazard . . . as defendants are liable for all normal and foreseeable consequences of their acts'” … . “Thus, to establish a prima facie case pursuant to Labor Law § 240(1), a plaintiff must demonstrate that the risk of injury from an elevation-related hazard was foreseeable, and that an absent or defective protective device of the type enumerated in the statute was a proximate cause of the injuries alleged” … .

Here, the plaintiffs demonstrated, prima facie, that the need for safety devices to protect the injured plaintiff from an elevation-related hazard was foreseeable, as the injured plaintiff was replacing wood decking on a pitched, elevated roof that had sustained water leaks, and that his injuries were proximately caused by the lack of adequate safety devices … . Sanchez v Congregation of Emanuel of Westchester, 2024 NY Slip Op 03446, Second Dept 6-20-24

Practice Point: An accident must be foreseeable to trigger liability under Labor Law 240(1). Here the court deemed it foreseeable that a roof which leaked and needed repair would collapse when plaintiff was standing on it.

 

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THE DEFENSE OF LACK OF STANDING WAS NOT RAISED IN THE ANSWER AND WAS THEREFORE WAIVED, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT ON THAT GROUND (SECOND DEPT).
WITNESS TESTIMONY DEMONSTRATED CLAIMANT LOST CONTROL OF HIS MOTORCYCLE AFTER GETTING CAUGHT IN A RUT IN THE ROAD; THE STATE HAD TAKEN PICTURES A FEW MONTHS BEFORE WHICH DEPICTED THE ROAD DEFECT; DEFENSE VERDICT REVERSED (SECOND DEPT).
BECAUSE THE ORDER DISMISSING THE COMPLAINT DID NOT DECIDE A MOTION MADE ON NOTICE, THE ORDER IS NOT APPEALABLE AS OF RIGHT; THEREFORE, A MOTION TO VACATE THE DISMISSAL PURSUANT TO CPRL 2221(A) IS PROPER (SECOND DEPT).
FATHER SHOULD NOT HAVE BEEN AWARDED SOLE CUSTODY IN THE ABSENCE OF A HEARING.
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COUNTY COURT SHOULD HAVE FURTHER RESTRICTED DISCOVERY FOR THE PROTECTION OF WITNESSES (SECOND DEPT).
No Evidence Release Invalidated by Fraud or Duress

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