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GENERAL CONTRACTOR DID NOT EXERCISE SUFFICIENT SUPERVISORY CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200 OR COMMON LAW NEGLIGENCE (SECOND DEPT).

The Second Department determined plaintiff’s knee injury stemming from carrying a heavy beam down stairs was not covered under Labor Law 240 (1). The court further found that defendant general contractor (Talisen) did not exercise sufficient supervisory control over plaintiff’s work to be liable under Labor Law 200 or common law negligence:

Labor Law § 200 codifies the common-law duty imposed on an owner or a general contractor to provide construction site workers with a safe place to work … . Where a plaintiff’s claims implicate the means and methods of the work, an owner or a contractor will not be held liable under Labor Law § 200 unless it had the authority to supervise or control the performance of the work. General supervisory authority to oversee the progress of the work is insufficient to impose liability… . ” A defendant has the authority to control the work for the purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed'” … . If the challenged means and methods of the work are those of a subcontractor, and the owner or contractor exercises no supervisory control over the work, no liability attaches under Labor Law § 200 or the common law … .

In this case, Talisen met its prima facie burden of demonstrating a lack of sufficient supervisory control over the plaintiff’s work to subject it to liability under either Labor Law § 200 or common-law negligence. In support of its motion, Talisen presented the deposition testimony of its project superintendent as well as the owner of Premier showing that decisions regarding the means and methods for carrying the beam were the responsibility of Premier. In opposition, the plaintiff failed to raise a triable issue of fact. Sullivan v New York Athletic Club of City of N.Y., 2018 NY Slip Op 04591, Second Dept 6-20-18

​LABOR LAW-CONSTRUCTION LAW (GENERAL CONTRACTOR DID NOT EXERCISE SUFFICIENT SUPERVISORY CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200 OR COMMON LAW NEGLIGENCE (SECOND DEPT))/GENERAL CONTRACTOR (LABOR LAW-CONSTRUCTION LAW, GENERAL CONTRACTOR DID NOT EXERCISE SUFFICIENT SUPERVISORY CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200 OR COMMON LAW NEGLIGENCE (SECOND DEPT))

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KNEE INJURY CAUSED BY CARRYING A HEAVY STEEL BEAM DOWN STAIRS IS NOT A COVERED ACCIDENT UNDER LABOR LAW 240 (1) (SECOND DEPT).

The Second Department, modifying Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action was properly granted and defendant’s (Premier’s) motion for summary judgment dismissing the Labor Law 240 (1) cause of action should have been granted. Plaintiff injured his knee carrying a heavy steel beam down some stairs. The court held that the incident was not encompassed by Labor Law 240 (1):

… [T]he plaintiff did not establish his prima facie entitlement to judgment as a matter of law, since he failed to demonstrate that his injury was caused by an elevation-related hazard encompassed by Labor Law § 240(1). The plaintiff’s evidence demonstrated that the cause of his injury was the weight of the beam he was carrying. The mere fact that the plaintiff was injured by the weight of a heavy object being lifted or carried does not give rise to liability pursuant to Labor Law § 240(1) … . The Court of Appeals has “repeatedly held, implicitly and explicitly, that it is not enough that a plaintiff’s injury flowed directly from the application of the force of gravity to an object or person, even where a device specified by the statute might have prevented the accident” … . Accordingly, the Supreme Court properly denied the plaintiff’s cross motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).

Premier established its prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) cause of action through evidence that the plaintiff was injured by the weight of the beam as opposed to an elevation-related risk … . Sullivan v New York Athletic Club of City of N.Y., 2018 NY Slip Op 04590, Second Dept 6-20-18

​LABOR LAW-CONSTRUCTION LAW (KNEE INJURY CAUSED BY CARRYING A HEAVY STEEL BEAM DOWN STAIRS IS NOT A COVERED ACCIDENT UNDER LABOR LAW 240 (1) (SECOND DEPT))

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PLAINTIFF’S DECEDENT’S RECKLESSNESS WAS THE SOLE LEGAL CAUSE OF HER DEATH BY ELECTROCUTION BY DOWNED POWER LINES (FIRST DEPT).

The First Department determined plaintiff’s decedent’s recklessness was the sole legal cause of her death. During Superstorm Sandy plaintiff’s decedent went outside, barefoot, to photograph downed power lines and was electrocuted:

The decedent was killed during Superstorm Sandy when she twice ventured outside her home to photograph downed power lines, and was electrocuted when one of the lines came in contact with her ankle. Her friend, who witnessed the incident, provided statements attesting to the fact that decedent left her home to investigate whether there was a fire, was shocked when she touched a metal gate in her front yard, returned to her home, and then exited the house again, barefoot this time, in order to photograph the scene. Decedent’s friend stated that he warned her repeatedly to stay away from the live wires and to get back inside, but she disregarded his warnings.

Defendants’ motion for summary judgment was properly granted since decedent’s recklessness in approaching live power wires in the midst of a major storm in order to take photographs was the sole legal cause of her death… . Plaintiffs contend that defendants were negligent in failing to properly maintain the power wires, adequately prepare for the storm, and respond rapidly enough to the notice of the emergency situation resulting from the downed wires. However, even if defendants were negligent, decedent’s recklessness was a superseding cause of her death … . Abraham v Consolidated Edison Co. of N.Y., Inc., 2018 NY Slip Op 04517, First Dept 6-19-18

​NEGLIGENCE (ELECTROCUTION, PLAINTIFF’S DECEDENT’S RECKLESSNESS WAS THE SOLE LEGAL CAUSE OF HER DEATH BY ELECTROCUTION BY DOWNED POWER LINES (FIRST DEPT))/UTILITIES  (ELECTROCUTION, PLAINTIFF’S DECEDENT’S RECKLESSNESS WAS THE SOLE LEGAL CAUSE OF HER DEATH BY ELECTROCUTION BY DOWNED POWER LINES (FIRST DEPT))/RECKLESSNESS (NEGLIGENCE, SOLE LEGAL CAUSE, ELECTROCUTION, PLAINTIFF’S DECEDENT’S RECKLESSNESS WAS THE SOLE LEGAL CAUSE OF HER DEATH BY ELECTROCUTION BY DOWNED POWER LINES (FIRST DEPT))/SOLE LEGAL CAUSE  (ELECTROCUTION, PLAINTIFF’S DECEDENT’S RECKLESSNESS WAS THE SOLE LEGAL CAUSE OF HER DEATH BY ELECTROCUTION BY DOWNED POWER LINES (FIRST DEPT))/SUPERSEDING CAUSE  (ELECTROCUTION, PLAINTIFF’S DECEDENT’S RECKLESSNESS WAS THE SOLE LEGAL CAUSE OF HER DEATH BY ELECTROCUTION BY DOWNED POWER LINES (FIRST DEPT))

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ALLEGATION THAT CHAIN OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS RELATES TO PLAINTIFF’S COMPARATIVE NEGLIGENCE WHICH DOES NOT PRECLUDE SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR (FIRST DEPT).

The First Department determined plaintiff was entitled to summary judgment in this slip and fall case. Plaintiff tripped over a yellow plastic chain lying on the ground. Because plaintiff need not show freedom from comparative fault, the allegation that the chain was open and obvious did not preclude summary judgment:

… [P]laintiff was not required to demonstrate his own freedom from comparative negligence to be entitled to summary judgment as to defendant’s liability (see Rodriguez v City of New York, ___ NY3d ___, 2018 NY Slip Op 02287 [2018]). For this reason, we also reject defendant’s argument that the chain on which plaintiff tripped was open and obvious, since that issue too is relevant to comparative fault and does not preclude summary resolution of the issue of defendant’s liability … . Derix v Port Auth. of N.Y. & N.J., 2018 NY Slip Op 04507, First Dept 6-19-18

​NEGLIGENCE (SLIP AND FALL, ALLEGATION THAT CHAIN OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS RELATES TO PLAINTIFF’S COMPARATIVE NEGLIGENCE WHICH DOES NOT PRECLUDE SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR (FIRST DEPT))/SLIP AND FALL (ALLEGATION THAT CHAIN OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS RELATES TO PLAINTIFF’S COMPARATIVE NEGLIGENCE WHICH DOES NOT PRECLUDE SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR (FIRST DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, ALLEGATION THAT CHAIN OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS RELATES TO PLAINTIFF’S COMPARATIVE NEGLIGENCE WHICH DOES NOT PRECLUDE SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR (FIRST DEPT))/COMPARATIVE NEGLIGENCE (SLIP AND FALL, ALLEGATION THAT CHAIN OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS RELATES TO PLAINTIFF’S COMPARATIVE NEGLIGENCE WHICH DOES NOT PRECLUDE SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR (FIRST DEPT))/SUMMARY JUDGMENT (SLIP AND FALL, ALLEGATION THAT CHAIN OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS RELATES TO PLAINTIFF’S COMPARATIVE NEGLIGENCE WHICH DOES NOT PRECLUDE SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR (FIRST DEPT))

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MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST A PUBLIC CORPORATION SHOULD NOT HAVE BEEN GRANTED FOR ONE OF TWO ACCIDENTS, CLAIMANT FAILED TO SHOW DEFENDANT HAD TIMELY ACTUAL KNOWLEDGE OF THE FIRST OF TWO ACCIDENTS (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined that claimant’s motion for leave to file a late notice of claim against defendant public corporation was properly granted for only one of two accidents. The Fourth Department held that the defendant did not have timely actual knowledge of the first accident because there was no evidence defendant was provided with the relevant accident report:

While we agree with respondent that claimant failed to establish a reasonable excuse for the delay … , “[t]he failure to offer an excuse for the delay is not fatal where . . . actual notice was had and there is no compelling showing of prejudice to [respondent]” … . …

… [W]e agree with claimant that he established that respondent would not be substantially prejudiced by any delay in serving the notice of claim. “[B]ecause the injur[ies] allegedly resulted from . . . fall[s] at a construction site, it is highly unlikely that the conditions existing at the time of the accident[s] would [still] have existed’ ” had the notice of claim been timely filed … . …

… [C]laimant failed to meet his burden of demonstrating that respondent had timely actual knowledge of the first accident. Despite having engaged in pre-action discovery, claimant is unable to provide any evidence that the incident report related to the first accident was ever transmitted to respondent, and there was no mention of the first accident in the construction closeout report submitted to respondent. Inasmuch as there is no evidence that respondent received timely actual knowledge of the occurrence of the first accident, respondent could not have received timely actual knowledge of ” the injuries or damages’ ” resulting therefrom … . Matter of Szymkowiak v New York Power Auth., 2018 NY Slip Op 04482, Fourth Dept 6-15-18

​NEGLIGENCE (MUNICIPAL LAW, LATE NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST A PUBLIC CORPORATION SHOULD NOT HAVE BEEN GRANTED FOR ONE OF TWO ACCIDENTS, CLAIMANT FAILED TO SHOW DEFENDANT HAD TIMELY ACTUAL KNOWLEDGE OF THE FIRST OF TWO ACCIDENTS (FOURTH DEPT))/MUNICIPAL LAW (MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST A PUBLIC CORPORATION SHOULD NOT HAVE BEEN GRANTED FOR ONE OF TWO ACCIDENTS, CLAIMANT FAILED TO SHOW DEFENDANT HAD TIMELY ACTUAL KNOWLEDGE OF THE FIRST OF TWO ACCIDENTS (FOURTH DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, LATE NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST A PUBLIC CORPORATION SHOULD NOT HAVE BEEN GRANTED FOR ONE OF TWO ACCIDENTS, CLAIMANT FAILED TO SHOW DEFENDANT HAD TIMELY ACTUAL KNOWLEDGE OF THE FIRST OF TWO ACCIDENTS (FOURTH DEPT))/PUBLIC CORPORATION (NOTICE OF CLAIM,  MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST A PUBLIC CORPORATION SHOULD NOT HAVE BEEN GRANTED FOR ONE OF TWO ACCIDENTS, CLAIMANT FAILED TO SHOW DEFENDANT HAD TIMELY ACTUAL KNOWLEDGE OF THE FIRST OF TWO ACCIDENTS (FOURTH DEPT))

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MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to set aside the verdict as against the weight of the evidence should not have been granted:

“It is well established that [a] verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence”… . “Where a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” … .

Here, there was sharply conflicting expert testimony with respect to whether plaintiff’s postoperative symptoms could have occurred without negligence on the part of defendant, and the jury was entitled to credit the testimony of defendants’ experts and reject the testimony of plaintiff’s expert … . We conclude that the court erred in setting aside the verdict as against the weight of the evidence inasmuch as “the jury had ample basis to conclude that plaintiff’s postoperative condition was not attributable to any deviation from accepted community standards of medical practice by defendant” … , and thus the jury’s finding that defendant was not negligent was not “palpably irrational or wrong” … . Clark v Loftus, 2018 NY Slip Op 04473, Fourth Dept 6-15-18

​NEGLIGENCE (MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/MEDICAL MALPRACTICE (MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/EVIDENCE (MEDICAL MALPRACTICE,  MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/CIVIL PROCEDURE (SET ASIDE THE VERDICT, MOTION TO, MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/VERDICT, MOTION TO SET ASIDE (MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

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DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this vehicle-pedestrian traffic accident case should not have been granted. Plaintiff demonstrated she suffered a serious injury within the meaning of the Insurance Law (fractures in her foot). And defendant did not demonstrate plaintiff’s negligence was the sole proximate cause of the accident:

Plaintiff commenced this negligence action seeking damages for injuries that she sustained when a vehicle operated by defendant struck her foot while she was walking her bicycle on the street beneath an overpass. We agree with plaintiff, as limited by her brief, that Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint and denying that part of plaintiff’s cross motion for partial summary judgment on the issue of serious injury.

Viewing the evidence in the light most favorable to plaintiff and affording her the benefit of every reasonable inference  … , we conclude that defendant failed to meet his initial burden on his motion of establishing as a matter of law that plaintiff’s negligence was the sole proximate cause of the accident … . Defendant’s own submissions raise triable issues of fact, including whether he violated his ” common-law duty to see that which he should have seen [as a driver] through the proper use of his senses’ ” … and his statutory duty to “exercise due care to avoid colliding with any bicyclist[ or] pedestrian” (Vehicle and Traffic Law § 1146 [a]).

Finally, it is uncontested that plaintiff established as a matter of law on her cross motion that she sustained fractures in her foot as a result of the accident and, therefore, she is entitled to partial summary judgment on the issue of serious injury (see Insurance Law § 5102 [d]). Luttrell v Vega, 2018 NY Slip Op 04468, Fourth Dept 6-15-18

​NEGLIGENCE (DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))/EVIDENCE (NEGLIGENCE, TRAFFIC ACCIDENTS, DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))/TRAFFIC ACCIDENTS (DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))/INSURANCE LAW (TRAFFIC ACCIDENTS, SERIOUS INJURY, DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))/SERIOUS INJURY (TRAFFIC ACCIDENTS, SERIOUS INJURY, DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, (DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))

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QUESTIONS OF FACT ON THE LABOR LAW 240 (1), LABOR LAW 241 (6), AND COMMON LAW NEGLIGENCE CAUSES OF ACTION, PLAINTIFF WAS USING THE TOP HALF OF AN EXTENSION LADDER AND THE LADDER SLIPPED OUT FROM UNDER HIM (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined neither party was entitled to summary judgment on Labor Law 240 (1), Labor Law 241 (6) and common law negligence causes of action stemming from plaintiff’s use of the top half of an extension ladder that slipped out from under him. With respect to the common law negligence cause of action against the property owner, the court explained:

Where the injured worker’s employer provides the allegedly defective equipment, the analysis turns on whether the defendant owner had the authority to supervise or control the work … . Where, however, the defendant owner provides the allegedly defective equipment, the legal standard “is whether the owner created the dangerous or defective condition or had actual or constructive notice thereof” … , because in that situation the defendant property owner “is possessed of the authority, as owner, to remedy the condition” of the defective equipment … . Contrary to defendants’ contention, they failed to establish as a matter of law that they did not create the dangerous condition of the ladder or have either actual or constructive notice of it. Moreover, “the absence of rubber shoes on a ladder is a visible and apparent defect,’ evidence of which may be sufficient to raise a triable issue of fact on the issue of constructive notice” … . Sochan v Mueller, 2018 NY Slip Op 04457, Fourth Dept 6-15-18

​LABOR LAW-CONSTRUCTION LAW (QUESTIONS OF FACT ON THE LABOR LAW 240 (1), LABOR LAW 241 (6), AND COMMON LAW NEGLIGENCE CAUSES OF ACTION, PLAINTIFF WAS USING THE TOP HALF OF AN EXTENSION LADDER AND THE LADDER SLIPPED OUT FROM UNDER HIM (FOURTH DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, QUESTIONS OF FACT ON THE LABOR LAW 240 (1), LABOR LAW 241 (6), AND COMMON LAW NEGLIGENCE CAUSES OF ACTION, PLAINTIFF WAS USING THE TOP HALF OF AN EXTENSION LADDER AND THE LADDER SLIPPED OUT FROM UNDER HIM (FOURTH DEPT))/NEGLIGENCE (LABOR LAW-CONSTRUCTION LAW, QUESTIONS OF FACT ON THE LABOR LAW 240 (1), LABOR LAW 241 (6), AND COMMON LAW NEGLIGENCE CAUSES OF ACTION, PLAINTIFF WAS USING THE TOP HALF OF AN EXTENSION LADDER AND THE LADDER SLIPPED OUT FROM UNDER HIM (FOURTH DEPT))

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF FELL FROM A SCAFFOLD AND HAD NOT TIED OFF HIS LANYARD (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, over a two-justice dissent, determined that defendant’s motion for summary judgment on the Labor Law 240 (1) should not have been granted. There were questions of fact whether plaintiff’s fall could have been prevented by an available safety device. Plainitiff was not tied off, but there was testimony he couldn’t have accomplished the work if he were tied off with a six foot lanyard. Although a 25 foot lanyard was available, plaintiff fell 25 to 30 feet and the retractable lanyard may not have prevented the injury:

“A violation occurs where a scaffold or elevated platform is inadequate in and of itself to protect workers against the elevation-related hazards encountered while assembling or dismantling that device, and it is the only safety device supplied or any additional safety device is also inadequate” … . …

We conclude that defendants’ own submissions raised triable issues of fact with respect to the Labor Law § 240 (1) claim. In support of their contentions that plaintiff’s conduct was the sole proximate cause of his injuries, defendants submitted plaintiff’s deposition testimony in which he testified that he chose to unhook his safety lanyard and detach the bridge scaffolding sheet without the benefit of the lanyard or other safety device. The six-foot lanyard given to him was not an adequate safety device, however, because plaintiff also testified that it was too short to permit plaintiff to reach the final clip anchoring the bridge scaffolding sheet, even if he had moved the fall arrest system cable to a location closer to that clip. Furthermore, although defendants submitted evidence that other safety devices were generally available on the work site, they failed to establish as a matter of law that an adequate safety device was present that would have prevented plaintiff “from harm directly flowing from the application of the force of gravity to . . . [his] person” … . For example, defendants failed to establish as a matter of law that a 20- or 25-foot lanyard, which appears to have been the next length available on the work site, would have prevented plaintiff’s fall by virtue of the fact that it was retractable. It therefore cannot be concluded on this record that plaintiff’s use of that alternative lanyard would have made any substantial difference in plaintiff’s injuries … . Martin v Niagara Falls Bridge Commn., 2018 NY Slip Op 04452, Fourth Dept 6-15-18

​LABOR LAW-CONSTRUCTION LAW (DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF FELL FROM A SCAFFOLD AND HAD NOT TIED OFF HIS LANYARD (FOURTH DEPT))/SCAFFOLDS (LABOR LAW-CONSTRUCTION LAW, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF FELL FROM A SCAFFOLD AND HAD NOT TIED OFF HIS LANYARD (FOURTH DEPT))

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FAILURE TO INSTRUCT THE JURY ON TWO REMOTE LESSER INCLUDED OFFENSES WAS HARMLESS ERROR, JURY WAS INSTRUCTED ON THE HIGHEST LESSER INCLUDED OFFENSE AND CONVICTED DEFENDANT OF THE TOP COUNT OF THE INDICTMENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that the trial court’s error in refusing the instruct the jury on manslaughter second and criminally negligent homicide was harmless error. The defendant was charged with murder and the trial court instructed the jury on manslaughter first degree as a lesser included offense. The jury convicted the defendant of both murder and manslaughter first. Because the jury convicted on the top count, and the jury was instructed on the top lesser included offense, the failure to instruct on the more remote lesser included offenses was deemed harmless error. The manslaughter first conviction was reversed as a lesser concurrent count:

As set forth by the Court of Appeals, “where a court charges the next lesser included offense of the crime alleged in the indictment, but refuses to charge lesser degrees than that, . . . the defendant’s conviction of the crime alleged in the indictment forecloses a challenge to the court’s refusal to charge the remote lesser included offenses” (People v Boettcher, 69 NY2d 174, 180 [1987]). The premise underlying a determination of harmless error is that, when a jury convicts the defendant of the top (i.e., highest) charged offense and thereby excludes from the case the next lesser (i.e., intermediate) included offense, the verdict dispels any significant probability that the jury, had it been given the option, would have acquitted the defendant of both the highest and intermediate charged offenses and instead convicted the defendant of the even lesser (i.e., remote) included offense that was erroneously not charged … . Thus, cases applying the analysis set forth in Boettcher hold that where the trial court charges the jury with the highest offense of murder in the second degree and the intermediate offense of manslaughter in the first degree, and the jury convicts the defendant of murder in the second degree, the defendant’s challenge on appeal to the court’s denial of a request to charge the remote offenses of manslaughter in the second degree and/or criminally negligent homicide is foreclosed, i.e., any error is harmless … . People v Mcintosh, 2018 NY Slip Op 04455, Fourth Dept 6-15-18

​CRIMINAL LAW (FAILURE TO INSTRUCT THE JURY ON TWO REMOTE LESSER INCLUDED OFFENSES WAS HARMLESS ERROR, JURY WAS INSTRUCTED ON THE FIRST LESSER INCLUDED OFFENSE AND CONVICTED DEFENDANT OF THE TOP COUNT OF THE INDICTMENT (FOURTH DEPT))/LESSER INCLUDED OFFENSES (FAILURE TO INSTRUCT THE JURY ON TWO REMOTE LESSER INCLUDED OFFENSES WAS HARMLESS ERROR, JURY WAS INSTRUCTED ON THE FIRST LESSER INCLUDED OFFENSE AND CONVICTED DEFENDANT OF THE TOP COUNT OF THE INDICTMENT (FOURTH DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, LESSER INCLUDED OFFENSES, FAILURE TO INSTRUCT THE JURY ON TWO REMOTE LESSER INCLUDED OFFENSES WAS HARMLESS ERROR, JURY WAS INSTRUCTED ON THE FIRST LESSER INCLUDED OFFENSE AND CONVICTED DEFENDANT OF THE TOP COUNT OF THE INDICTMENT (FOURTH DEPT))

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