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PLAINTIFF WAS STRUCK BY A FALLING BEAM WHICH SHOULD HAVE BEEN SECURED; PLAINTIFF WAS NOT OTHERWISE PROTECTED FROM FALLING OBJECTS; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was struck by a falling beam which should have been secured. The fact that plaintiff did not know where the beam came from did not preclude summary judgment:

Plaintiff’s proof showed that the support beam was a load that required securing for the purposes of the undertaking … .Further, the elevated platform was not guarded by a safety device such as netting or enclosure that would have prevented the beam from falling on plaintiff … .

While plaintiff and his coworker did not actually witness where the beam came from, plaintiff “is not required to show the exact circumstances under which the object fell,” provided he can demonstrate that the lack of a protective device called for under Labor Law § 240(1) proximately caused his injuries …  A plaintiff’s prima facie case is “not dependent on whether he had observed what had hit him, or whether the object in question was dropped or fell in some other manner ” … .  Fromel v W2005/Hines W. Fifty-Third Realty, LLC, 2024 NY Slip Op 05828, First Dept 11-21-24

Practice Point: Being struck by an unsecured falling object, and the failure to provide protection from falling objects, may warrant summary judgment on a Labor law 240(1) cause of action.

 

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ALTHOUGH PLAINTIFF’S EXPERT IN THIS ELEVATOR ACCIDENT CASE WAS NOT A PROFESSIONAL ENGINEER, HE HAD BEEN QUALIFIED AS AN EXPERT IN 120 CASES; THE JUDGE SHOULD NOT HAVE SUMMARILY DISQUALIFIED HIM (FIRST DEPT).

The First Department, reversing Supreme Court, determined the trial judge should not have disqualified plaintiff’s expert in this elevator accident case. Although the expert was not a professional engineer, he had been qualified as an expert in over 120 state and federal cases:

Supreme Court erred in summarily disqualifying the opinion of Patrick A. Carrajat as an expert. Although Carrajat was not a professional engineer, he nonetheless had the requisite knowledge and experience to render an opinion on the cause of the accident, as he averred that he had been qualified as an elevator expert and testified as an expert witness 120 times in state and federal courts throughout the country … . Furthermore, challenges regarding an expert witness’ qualifications affect the weight to be accorded the expert’s views, not their admissibility … .

Plaintiff’s expert’s affidavit creates issues of fact as to both the nature of the incident, and the cause of the incident. While defendants’ experts opined that the elevator could not have malfunctioned as plaintiff described, and that the elevator descended to the lobby at regular speed, Carrajat disputed this and posited ways in which the elevator could have malfunctioned that were consistent with plaintiff’s account of the accident. Given the conflicting expert affidavits, the building defendants have not established their entitlement to summary judgment … . Escolastico v Rigs Mgt. Co., LLC, 2024 NY Slip Op 05769, First Dept 11-19-24

Practice Point: Here in this elevator-accident case plaintiff’s expert was not a professional engineer but had been qualified as an expert in over 120 cases. It was reversible error to summarily disqualify him.

 

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PLAINTIFF’S BRINGING MULTIPLE MERITLESS LAWSUITS AGAINST DEFENDANT AND HER ATTORNEYS OVER THE COURSE OF TEN YEARS WARRANTED SANCTIONS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s bringing several meritless lawsuits against defendant and her attorneys over the course of ten years warranted sanctions:

Supreme Court improvidently exercised its discretion in denying defendant an award of sanctions despite noting that plaintiff’s “conduct was entirely frivolous,” “abusive,” and “fabricated.” The record firmly established that plaintiff engaged in a persistent pattern of extended and largely meritless litigation against defendant … , rendering his conduct frivolous within the meaning of 22 NYCRR 130-1.1(c) and thereby warranting sanctions. Plaintiff’s numerous lawsuits initiated against both defendant and her attorneys—six separate suits between 2010 and 2020, all dismissed at the pleading stage—strongly suggests that those lawsuits, along with the present action, were brought primarily to harass defendant … . Our prior decision holding that sanctions for frivolous conduct were not warranted does not affect our decision to grant the motion for sanctions here, as the result in our prior decision (Ray v Ray, 180 AD3d 472, 474 [1st Dept 2020]) was not based on these particular facts. Ray v Ray, 2024 NY Slip Op 05777, First Dept 11-19-24

Practice Point: Here plaintiff’s multiple meritless lawsuits against defendant and her attorneys warranted sanctions for “frivolous conduct.”

 

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PROOF THAT PLAINTIFF WIFE ASSUMED FULL RESPONSIBILITY FOR HOUSEHOLD CHORES, COOKING, TRANSPORTIING THE CHILDREN, AND CARED FOR THE INJURED PLAINTIFF, WARRANTED A $40,000 AWARD FOR LOSS OF SERVICES; THE JURY HAD AWARDED $0 DAMAGES (FIRST DEPT).

The First Department, remanding for a new trial unless the parties stipulate to a damages award of $40,000 for loss of services, determined the jury’s award of $0 damages constituted a material deviation from reasonable compensation:

Plaintiff wife testified that after the injured plaintiff’s accident, she assumed full responsibility for household chores, cooking, and transportation for plaintiffs’ children, and also had to care for the injured plaintiff. This testimony is sufficient to support an award for past loss of services … . Lind v Tishman Constr. Corp. of N.Y., 2024 NY Slip Op 05540, First Dept 11-12-24

Practice Point: Consult this decision for some insight into the value of “loss of services” in a personal injury case.

 

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DEFENDANT’S 2013 GUILTY PLEA WAS DEEMED DEFECTIVE BECAUSE THE JUDGE FAILED TO ENSURE THE DEFENDANT UNDERSTOOD THE CHARGE; BECAUSE THE 2013 CONVICTION WAS UNCONSTITUTIONALLY OBTAINED, IT CANNOT BE A BASIS, IN 2020, FOR SENTENCING THE DEFENDANT AS A PERSISTENT VIOLENT PREDICATE FELON; SENTENCE VACATED (FIRST DEPT).

The First Department, remanding the matter for resentencing, determined defendant should not have been sentenced as a persistent violent predicate felon based on a 2013 guilty plea because the plea to attempted burglary second was constitutionally invalid. In the plea allocution, defendant indicated he formulated the intent to steal after he entered the dwelling, prompting the need for further questioning by the judge. The intent to steal must be formulated before entry:

During the allocution on defendant’s 2013 plea to attempted burglary in the second degree, he asserted that, although he stole property from the subject dwelling, his intent at the time he unlawfully entered the premises was to tell its occupant to close the door. Because “the intent to commit a crime in the dwelling must be contemporaneous with the entry” under the burglary statute … , defendant’s statement that he formed the requisite intent “only after [he] had entered . . . the [premises] unlawfully” negated an element of the crime to which he pleaded guilty … . This statement triggered the court’s duty to make further inquiry in order to ensure that defendant understood “the nature of the charge and that the plea [was] intelligently entered” … . The court failed to do so. To the extent that the court conducted a further inquiry, its questions did no more than establish that defendant stole property once he was inside the dwelling, without refuting his statement that he had not intended to steal the property at the time of entry, nor did defendant confirm that he wished to waive a defense on that basis … . On this record, “we cannot conclude that defendant’s guilty plea was knowingly, voluntarily and intelligently made” … . Accordingly, since the requirements for enhanced sentencing have not been met, defendant’s sentence as a persistent violent felony offender must be vacated … . People v Stewart, 2024 NY Slip Op 05546, First Dept 11-12-24

Practice Point: Here it appears defense counsel demonstrated the 2013 guilty plea was unconstitutionally obtained because of an error by the sentencing judge during the allocution. Defense counsel then successfully argued the 2013 conviction could not be a basis for the 2020 sentencing of defendant as a persistent violent predicate felon. The current status of the 2013 conviction was not discussed.

 

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THERE WAS NO PROOF THE ORDER TO SHOW CAUSE WAS ACTUALLY DELIVERED TO THE INCARCERATED DEFENDANT; DEFAULT JUDGMENT VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the order to show cause was not properly served on the incarcerated defendant, requiring vacation of the default judgment:

“The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with” … . “The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void” … .

The order granting plaintiff summary judgment on his claims without opposition submitted by defendant and the related Special Referee order awarding damages are vacated. Defendant affirmed that he did not know of, or have access to, the summary judgment motion hand-delivered and served by plaintiff’s process server on a receptionist at the prison where defendant is incarcerated until after the order granting summary judgment was entered. Plaintiff’s service on the prison employee who assured that the motion would be given to plaintiff did not satisfy the court’s order to show cause approving alternative means of service that were applicable to the service of legal papers on the incarcerated defendant, and which required plaintiff to obtain at least some evidence from the prison that the served documents had, in fact, been delivered to the prisoner. The presumption of effective service arising from a valid affidavit of a process server does not apply here. The court approved an alternative means of service on the defendant incarcerated in a foreign prison, and plaintiff failed to comply. Therefore, defendant’s unrebutted claim that he did not receive the motion is not conclusory and requires vacatur of the default. Bacon v Nygard, 2024 NY Slip Op 05478, First Dept 11-7-24

Practice Point: Here service of an order to show cause upon the incarcerated defendant was not supported by any evidence the order to show cause was actually delivered to the defendant after it was given to a prison employee, Therefore the default judgment was vacated.

 

PLYWOOD DELIBERATELY PLACED AS A TEMPORARY FLOOR DOES NOT CONSTITUTE “DIRT AND DEBRIS” OR “SCATTERED TOOLS AND MATERIALS” OR “SHARP PROTECTIONS” WITHIN THE MEANING OF THE INDUSTRIAL CODE; THEREFORE PLAINTIFF’S STEPPING IN A HOLE IN THE PLYWOOD AND FALLING IS NOT COVERED BY LABOR LAW 241(6) (FIRST DEPT). ​

The First Department determined Supreme Court properly dismissed the Labor Law 241(6) cause of action because the plywood used for temporary flooring, which had a hole in it which caused plaintiff to fall, was not “dirt and debris” or “scattered tools or materials” or “sharp projections” within the meaning of the Industrial Code:

… Industrial Code (12 NYCRR) § 23-1.7 (e) (2), … provides:

“Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.”

On its face, section 23-1.7(e)(2) does not apply to all potential tripping hazards but only to “accumulations of dirt and debris,” “scattered tools and materials,” and “sharp projections.” As plaintiff admitted in his deposition testimony, the perforated plywood board on which he tripped had been deliberately placed on the stripped floor as a protective measure, in response to plaintiff’s own complaints. Thus, as a matter of law, the plywood board, notwithstanding its hole, could not be described as an “accumulation[] of . . . debris” or as part of a “scatter[ing]” of “tools and materials” … . Accordingly, as a matter of law, the plywood board did not fall within the scope of Industrial Code § 23-1.7(e)(2). Cioppa v ESRT 112 W. 34th St., L.P., 2024 NY Slip Op 05482, First Dept 11-7-24

Practice Point: Plywood placed as a temporary floor does not constitute “dirt and debris” within the meaning of the Industrial Code. Therefore stepping in a hole in the plywood and falling is not covered by Labor Law 241(6).

 

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ACCORDING TO THE MEDICAL RECORDS, PLAINTIFF PROVIDED HER TREATING PHYSICIAN WITH A DESCRIPTION OF HER SLIP AND FALL WHICH DIFFERED FROM HER DESCRIPTION IN HER DEPOSITION TESTIMONY; PLAINTIFF’S MOTION TO QUASH THE SUBPOENA SERVED ON THE PHYSICIAN SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to quash the subpoena served on plaintiff’s treating physician, Dr. Monfett, in this slip and fall case should not have been granted. The medical records revealed plaintiff told the treating physician she tripped and fell breaking up a fight in a subway station. Plaintiff testified she fell because of a broken sidewalk in front of defendant’s building. The court noted that the statement in the medical record may be inadmissible hearsay without the physician’s testimony linking the statement to the plaintiff:

Dr. Monfett’s deposition is material and necessary to the defense because plaintiff’s account of her accident to the doctor conflicts with her deposition testimony, and this discrepancy bears directly on defendants’ potential liability, as well as plaintiff’s credibility … . Furthermore, the deposition is necessary because plaintiff’s statements in the medical record likely would be inadmissible as hearsay without the doctor’s testimony attributing them to her … . Defendants were not required to demonstrate “special circumstances” warranting Dr. Monfett’s deposition because they seek to depose him “solely with regard to plaintiff’s account of the accident, not for any expert medical opinion regarding plaintiff’s diagnosis or treatment” … . Ogando v 40 X Owner LLC, 2024 NY Slip Op 05491, First Dept 11-7-24

Practice Point: Here defendants subpoenaed plaintiff’s treating physician because the statement attributed to plaintiff in her medical records differed from her description of the trip and fall in her deposition testimony. The defendants were not seeking to depose the physician as an expert concerning plaintiff’s diagnosis or treatment, but rather were focused on plaintiff’s apparently conflicting account of the accident, which would be inadmissible hearsay without the physician’s testimony.

 

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PLAINTIFF WAS NOT PROVIDED WITH A SECURED A-FRAME LADDER AND WAS NOT PROVIDED WITH ANYTHING TO SECURE THE PIPE HE WAS ATTEMPTING TO REMOVE WHEN IT FELL AND STRUCK THE LADDER; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; THE “RECALCITRANT WORKER” AND “FAILURE TO FOLLOW SAFETY INSTRUCTIONS” ALLEGATIONS DID NOT RAISE A QUESTION OF FACT (FIRST DEPT).​ ​

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was standing on an unsecured A-frame ladder when a piece of pipe he was attempting remove fell and struck the ladder. The unsecured ladder was not an adequate safety device and no safety device was provided to secure the pipe. Allegations the plaintiff was a recalcitrant worker and was the proximate cause of the accident did not raise a question of fact:​

Defendants are liable for these injuries because plaintiff was not provided any safety devices except an unsecured ladder … .

Plaintiff was also not provided any safety devices to secure the pipe while it was being removed … . The use of a safety device to secure the pipe would not have impeded the work in progress … . Even if plaintiff’s coworkers were supposed to hold the pipe as he cut it, “people are not safety devices within the meaning of Labor Law § 240(1)” … .

… While defendants contend that plaintiff’s foreman gave him safety instructions concerning how to cut the pipe and where to place the ladder so that it would not be hit by a falling pipe, plaintiff was not recalcitrant because he was not provided with an adequate safety device to secure the pipe “in the first instance” … .

There is also no issue of fact as to whether plaintiff was the sole proximate cause of the accident because, even if the length of the pipe that plaintiff cut was too long, he was not provided with an adequate safety device to secure the pipe … . Furthermore, even if plaintiff disregarded an instruction not to place the ladder where the pipe could hit it, that was not the sole proximate cause of the accident as “an instruction to avoid an unsafe practice is not a sufficient substitute for providing a worker with a safety device to allow him to complete his work safely” … . Jara-Salazar v 250 Park, L.L.C., 2024 NY Slip Op 05407, First Dept 10-31-24

Practice Point: If an accident is the result of the failure to provide plaintiff with adequate safety equipment, the allegation plaintiff failed to follow safety instructions will not raise a question of fact.​

Practice Point: Here the failure to provide safety devices to secure a pipe which was being removed from the ceiling when it fell was a ground for defendants’ liability.

 

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PLAINTIFF FELL FROM A SCAFFOLD WITH NO GUARDRAILS; DEFENDANTS’ AFFIDAVIT ALLEGING GUARDRAILS WERE AVAILABLE WAS NOT BASED ON FIRST-HAND KNOWLEDGE AND THEREFORE DID NOT RAISE A QUESTION OF FACT; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this scaffold-fall case. The scaffold had no guardrails. The affidavit presented by the defendants stating that there were guardrails available did not raise a question of fact because the affiant was not at the site on the day of the fall:

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on his Labor Law § 240(1) cause of action by submitting undisputed evidence that he fell off a scaffold, which lacked guardrails that would have prevented his fall, after the scaffold moved while he was standing atop it … .

Defendants failed to raise an issue of fact in opposition as to whether plaintiff was a recalcitrant worker. Although defendants presented an affidavit from the principal of nonparty contactor and plaintiff’s employer stating that there was a standing order for its employees to use only baker scaffolds with safety railings, that there were safety railings available at the worksite, and that safety railings would be provided upon request, this testimony does not suffice to raise an issue of fact. On the contrary, the principal expressly acknowledged that he was not present on the worksite on the date of plaintiff’s injury, and he offered no basis to find that he personally knew sufficient guardrails were present at the worksite for plaintiff to use on the scaffold … . Indeed, plaintiff testified that there were no guardrails available for use on the date of the incident. Ruiz v BOP 245 Park LLC, 2024 NY Slip Op 05419, First Dept 10-31-24

Practice Point: Here an affidavit which was not based on first-hand knowledge was deemed insufficient to raise a question of fact.

 

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