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PLAINTIFF WAS KILLED WHEN A HEAVY PIECE OF EQUIPMENT HE WAS WELDING FELL; ALTHOUGH THE EQUIPMENT WAS FABRICATED FOR A POWER PLANT BEING CONSTRUCTED IN NEW HAMPSHIRE, PLAINTIFF WAS NOT ENGAGED IN CONSTRUCTION WORK WITHIN THE MEANING OF LABOR LAW 240 (1) (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff was not involved in an activity covered by Labor Law 240 (1) when he was pinned and killed by a piece of equipment he was welding. Plaintiff was engaged in fabricating a rotor compartment which was to be installed in a power plaint in New Hampshire. Plaintiff and the dissent argued plaintiff’s work was part of the New Hampshire construction project:

We conclude that defendants thus established that decedent was not engaged in a covered activity under Labor Law § 240 (1) inasmuch as he was performing his “customary occupational work of fabricating” and welding a rotor compartment “during the normal manufacturing process” at the plant in Wellsville, and was not involved in the construction project in New Hampshire nor involved in renovation or alteration work on the plant in Wellsville … . Preston v APCH, Inc., 2019 NY Slip Op 06236, Fourth Dept 8-22-19

 

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THE FAILURE TO RULE ON A MOTION FOR A TRIAL ORDER OF DISMISSAL IS NOT A DENIAL OF THE MOTION; AN APPELLATE COURT MUST REMIT FOR A RULING BY THE TRIAL COURT (FOURTH DEPT).
THE CO-GUARDIAN SHOULD NOT HAVE BEEN REMOVED WITHOUT A HEARING; ALTHOUGH THE CO-GUARDIAN HAS A FELONY CONVICTION, SHE OBTAINED A CERTIFICATE OF RELIEF FROM DISABILITIES; THEREFORE, ALTHOUGH SURROGATE’S COURT CAN REMOVE THE CO-GUARDIAN IN THE EXERCISE OF DISCRETION, REMOVAL IS NOT AUTOMATIC (FOURTH DEPT).
WHETHER MOTHER VALIDLY WAIVED HER RIGHT TO COUNSEL WAS APPEALABLE BECAUSE THE ISSUE WAS CONTESTED BEFORE MOTHER DEFAULTED BY FAILING TO APPEAR, DESPITE THE FACT THAT MOTHER’S REQUEST TO REPRESENT HERSELF WAS GRANTED; MOTHER WAS ADEQUATELY INFORMED OF THE RIGHTS SHE WAS GIVING UP (FOURTH DEPT). ​
Defendants Accused of Crimes Not Listed in the Controlling Statutes Are Not Eligible for the Judicial Diversion Program—The Statutes Do Not Allow for Judicial Discretion
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