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PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION; DEFENDANTS WERE ENTITLED TO SUMMARY JUDMENT ON THE LABOR LAW 200 CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s motions for summary judgment on his Labor Law 240(1) and 241(6) causes o action should have been granted. In addition defendants’ motion for summary judgment on the Labor Law 200 cause of action should have been granted, Plaintiff was standing on a scaffold with no railing when a piece of concrete fell from the ceiling and knocked him off the scaffold:

… [T]he plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability on the Labor Law § 240(1) cause of action, through his deposition testimony that the scaffold he was using lacked any safety railings and that he tried to grab onto something as he fell from the scaffold but “there was nothing to grab” … . …

Similarly, the plaintiff met his prima facie burden with respect to so much of the Labor Law § 241(6) cause of action as was predicated upon 12 NYCRR 23-5.3(e), by establishing that the scaffold lacked safety railings in violation of that regulation and that such violation was a proximate cause of his injuries … . * * *

[Re; the Labor Law 200 cause of action:] … [T]he defendants … demonstrated … that they did not have the authority to supervise or control the plaintiff’s work … . The defendants … further demonstrated … that they did not create or have actual or constructive notice of any alleged defect in the concrete ceiling. Since the concrete ceiling had been covered by a drop ceiling until the drop ceiling was demolished … , any alleged defect in the concrete ceiling was latent and not discoverable upon a reasonable inspection … . Leon-Rodriguez v Roman Catholic Church of Sts. Cyril & Methodius, 2021 NY Slip Op 08228, Second Dept 3-17-21

 

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PLAINTIFF DID NOT PROVIDE SUFFICIENT PROOF IT HAD NOTIFIED DEFENDANT OF THE FORECLOSURE ACTION PURSUANT TO RPAPL 1304, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).
THE DEFENDANT HOSPITAL DID NOT DEMONSTRATE THAT A DOCTOR ORDERED THE RESTRAINT OF PLAINTIFF’S DECEDENT AND THEREFORE DID NOT DEMONSTRATE THAT MEDICAL MALPRACTICE, AS OPPOSED TO NEGLIGENCE, WAS THE APPROPRIATE THEORY; THE ACTION SHOULD NOT HAVE BEEN DISMISSED BASED UPON THE EXPIRATION OF THE 2 1/2 YEAR STATUTE OF LIMITATIONS FOR MEDICAL MALPRACTICE (SECOND DEPT).
IN DETERMINING WHETHER A PRIMA FACIE CASE HAS BEEN MADE OUT IN A FAMILY OFFENSE PROCEEDING, CREDIBILITY IS IRRELEVANT (SECOND DEPT).
ALTHOUGH THE PLAINTIFF BANK DID NOT INITIATE PROCEEDINGS TO TAKE A JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT IN THIS FORECLOSURE ACTION, THE DEFENDANTS HAD FILED AN UNTIMELY ANSWER WHICH WAIVED THE DEFENDANTS’ RIGHT TO SEEK DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3215 (C) (SECOND DEPT). ​
PLAINTIFF BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
ALTHOUGH THE COMPLAINT STATED CAUSES OF ACTION FOR NEGLIGENT MISREPRESENTATION AND FRAUD, THE JUDICIARY LAW 487 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE IT WAS NOT ALLEGED THE DECEIT OCCURRED DURING A JUDICIAL PROCEEDING (SECOND DEPT).
A PARTY’S ADMISSION IN AN UNCERTIFIED POLICE REPORT IS NO LONGER ADMISSIBLE IN THE 2ND DEPARTMENT AND DECISIONS TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).

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