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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED; PLAINTIFF FELL FROM A WALL UNDER CONSTRUCTION AND HAD NOT BEEN PROVIDED WITH A HARNESS; DEFENDANT’S EXPERT’S AFFIDAVIT WAS SPECULATIVE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Defendant’s expert’s affidavit was deemed speculative because it was not based upon record evidence. Defendant’s argument that further discovery might reveal defenses was rejected, in part, because defendant was not diligent in pursuing discovery:

Plaintiff established prima facie entitlement to partial summary judgment on his Labor Law § 240(1) claim with his deposition testimony, photographic exhibits and expert’s opinion, which showed that he fell from a 10-foot high sidewalk bridge that he was helping to assemble on defendant’s property, when a pile of heavy wooden planks shifted and struck him on the legs, causing him to lose his balance. Plaintiff testified that the side barriers for the sidewalk bridge were not yet built, and he was not supplied with a safety harness to protect him from gravity-related harm … . …

Defendant’s argument that plaintiff’s motion for partial summary judgment was premature where its expert opined that depositions of the contractor’s personnel yet to be taken might yield evidence that plaintiff was supplied with a fall-arrest safety harness, and that he was recalcitrant in not using it, lacks factual support in the record, and as such, the expert’s opinion in that regard is speculative and non-probative … . The mere hope that additional discovery may lead to sufficient evidence to defeat a summary judgment motion is insufficient to deny such a motion … . The record further shows that defendant had a reasonable opportunity to pursue discovery … , and defendant has not shown that it was diligent in pursuing discovery in this case … . Singh v New York City Hous. Auth., 2019 NY Slip Op 08272, First Dept 11-14-19

 

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THE TIME-OF-THE-ESSENCE DATE WAS PROPERLY SET; THE BUYER WAS NOT ABLE TO CLOSE ON THAT DATE: DEFENDANTS-SELLERS ENTITLED TO KEEP THE DOWNPAYMENT (SECOND DEPT).
FINDING THAT LIQUOR LICENSEE WAS AWARE OF THE PRESENCE OF DRUGS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; RARE DISCUSSION OF THAT ADMINISTRATIVE PROCEEDING STANDARD OF PROOF.
HOMEOWNER’S EXCEPTION TO LABOR LAW 240 (1) LIABILITY APPLIED, DEFENDANTS DEMONSTRATED FREEDOM FROM FAULT UNDER LABOR LAW 200.
ALTHOUGH PLAINTIFF FELL FROM A LADDER, HIS LABOR LAW 240(1) CAUSE OF ACTION WAS PROPERLY DISMISSED; THERE WAS A VIDEO OF PLAINTIFF’S FALL WHICH SHOWED THE LADDER WAS SECURED TO THE SCAFFOLDING AND DID NOT MOVE (FIRST DEPT).
QUESTIONS OF FACT WHETHER THE DEFENDANT CITY WAS AWARE OF A DEFECT IN THE SOFTBALL PLAYING FIELD, WHETHER THE DEFECT WAS NEGLIGENTLY REPAIRED AND WHETHER PLAINTIFF ASSUMED THE RISK OF INJURY, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​
THE SUPERIOR COURT INFORMATION (SCI) WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT INCLUDED OFFENSES FOR WHICH DEFENDANT WAS NOT HELD FOR GRAND JURY ACTION (FIRST DEPT).
DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMANDED; DEFENDANT WAS NOT INFORMED THAT BY PLEADING GUILTY TO A PROBATION VIOLATION HE WAS GIVING UP HIS RIGHT TO A HEARING; APPEAL CONSIDERED IN THE INTEREST OF JUSTICE (FIRST DEPT).

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