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THE FACT THAT OSHA REQUIRES PROTECTION ONLY FOR FALLS MORE THAN SIX FEET WAS IRRELEVANT; PLAINTIFF, WHO FELL FROM AN ELEVATED PLANK, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined plaintiff’s fall from a plank, even if the fall was less than six feet, entitled him to summary judgment on the Labor Law 240 (1) cause of action:

Even if, as [defendant] contends, plaintiff fell less than six feet, that does not render the statute inapplicable … , [Defendant’s] claimed compliance with OSHA regulations requiring fall protection only for falls of six feet or more is irrelevant … . The wooden plank from which plaintiff fell did not constitute a “passageway,” but “served, conceptually and functionally, as an elevated platform or scaffold” … . DaSilva v Toll First Ave., LLC, 2021 NY Slip Op 06438 First Dept 11-18-21

 

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DISAGREEING WITH THE THIRD DEPARTMENT, THE SECOND DEPARTMENT HELD THAT A PREHEARING DENIAL OF AN APPLICATION FOR RESENTENCING UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) IS APPEALABLE; HERE DEFENDANT DID NOT DEMONSTRATE A SUFFICIENT NEXUS BETWEEN THE ABUSE HE SUFFERED WHILE LIVING WITH HIS FAMILY AND THE STABBING OF A STRANGER AFTER HE HAD LEFT HOME (FIRST DEPT).
THE CURB AND TREE WELL ARE NOT AREAS OF A SIDEWALK WHICH ARE THE RESPONSIBILITY OF THE ABUTTING PROPERTY OWNER; THE PROPERTY OWNER’S/MANAGER’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).
SUIT SEEKING INDEMNIFICATION FOR A SETTLEMENT PAID TO DEFENDANT’S EMPLOYEE SHOULD NOT HAVE BEEN DISMISSED, RELEVANT LAW EXPLAINED (FIRST DEPT).
SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT).
ORDINANCE OR LAW ENDORSEMENT DID NOT REQUIRE INSURER TO PAY FOR REMEDIATION OF CODE VIOLATIONS NOT RELATED TO THE COVERED DAMAGE.
MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT).
DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO SET ASIDE HER CONVICTION, ERRONEOUS ADVICE ABOUT DEPORTATION ALLEGED TO CONSTITUTE INEFFECTIVE ASSISTANCE.
Pat-Down Search Justified by the Objective Existence of Probable Cause to Arrest, Even Though the Officer Did Not Intend to Arrest at the Time of the Search.

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