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PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER.

The Third Department determined defendant school district was entitled to summary judgment in this sports injury case. Plaintiff (Legac) was struck in the face by a baseball during tryouts held in the gymnasium (due to weather). The Third Department held that the school district demonstrated plaintiff had assumed the risk of injury. He was an experienced baseball player and was aware of the way the baseball was being hit by the coach and the way the baseball reacted when striking the gymnasium floor:

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While Legac testified that he believed that Potter was hitting the ball “too hard” and that the baseball traveled faster on the gymnasium floor than it would have on a baseball field, such conditions were open and obvious and clearly appreciated by Legac, who had the opportunity to watch the players ahead of him complete the ground ball fielding drill and had observed the ball interact with the flooring over three days of indoor tryouts … . Inasmuch as the conditions inherent in the indoor ground ball fielding drill were readily apparent to Legac and the risk of being struck by a ball was a reasonably foreseeable consequence of engaging in that drill, we find that defendants established their prima facie entitlement to summary judgment dismissing the complaint … . Legac v South Glens Falls Cent. Sch. Dist., 2017 NY Slip Op 04182, 3rd Dept 5-25-17

NEGLIGENCE (PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER)/EDUCATION-SCHOOL LAW (SPORTS, PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER)/ASSUMPTION OF THE RISK (EDUCATION-SCHOOL LAW, PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER)/BASEBALL (EDUCATION-SCHOOL LAW, SPORTS, PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER)

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INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS.

The Third Department, annulling the determination below, found that petitioner-police officer’s application for accidental and performance of duty retirement benefits should not have been denied. Although the comptroller can accept the opinion of one expert over another, in this case the inconsistencies in the retirement system’s expert’s (Hughes’) testimony did not provide substantial evidence for the finding against the petitioner:

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On cross-examination, however, Hughes acknowledged that petitioner complained of a number of post-concussion symptoms during his examination and he believed that petitioner was being truthful. When asked if these symptoms would preclude petitioner from performing the specific duties of a police officer, Hughes initially explained that he confined his opinion to “whether [petitioner’s] neck injury and post-concussion syndrome caused by the accident of 3/19/09 resulted in a permanent disability.” Nonetheless, he subsequently confirmed that petitioner’s symptoms could impede his ability to use a firearm, carry out complicated directions and perform other police-related tasks. Ultimately, Hughes agreed that petitioner suffered “an exacerbation or recurrence” of his post-concussion symptoms in July 2010, that would disable him from performing the duties of a police officer.

In our view, Hughes’ inconsistent testimony on the issue of permanent incapacity and failure to account for the July 2010 incident in rendering his opinion does not constitute a rational and fact-based opinion necessary to support the finding that petitioner was not permanently incapacitated from performing his duties as a police officer. To the contrary, the record contains ample medical evidence and documentation, most significantly Ward’s testimony, establishing that petitioner was permanently incapacitated by injuries sustained as a result of the March 19, 2009 incident that were later exacerbated in July 2010. Accordingly, inasmuch as we find that the Comptroller’s determination is not supported by substantial evidence, it must be annulled and the matter remitted for further proceedings … . Matter of Rawson v DiNapoli, 2017 NY Slip Op 04189, 3rd Dept 5-25-17

EMPLOYMENT LAW (POLICE OFFICERS, ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)/EVIDENCE,  (POLICE OFFICERS, ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)/POLICE OFFICERS (ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)/ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS (POLICE OFFICERS, ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)/RETIREMENT BENEFITS (POLICE OFFICERS, ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)

ALTHOUGH DEFENDANT’S GUILTY PLEA SATISFIED AN UNCHARGED BURGLARY, THE SENTENCING COURT SHOULD NOT HAVE ORDERED RESTITUTION FOR THE UNCHARGED BURGLARY.

The Third Department determined the sentencing court erred when it ordered restitution for an uncharged burglary (on December 18). Although defendant’s guilty plea was taken in satisfaction of the uncharged December 18 burglary, that burglary was never included in an accusatory instrument and was not shown to be part of the same criminal transaction to which defendant pled:

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Pursuant to Penal Law § 60.27, a trial court may order restitution arising from “the offense for which a defendant was convicted, as well as any other offense that is part of the same criminal transaction or that is contained in any other accusatory instrument disposed of by any plea of guilty by the defendant to an offense” (Penal Law § 60.27 [4] [a]). Defendant’s guilty plea pertained to the December 24, 2014 burglary of the warehouse, and satisfied uncharged burglaries from that warehouse on December 15 and 18, 2014. … After a hearing, County Court determined that there was insufficient evidence that defendant had committed the December 15 burglary but ordered restitution in the amount of $11,471 for the materials stolen in the December 18 burglary.

However, no proof was adduced at the hearing that the December 18 burglary was ever charged in an accusatory instrument and the People did not prove by a preponderance of the evidence that this burglary was part of “the same criminal transaction” as the December 24 crime of conviction … . To be part of the same criminal transaction, the conduct must be “either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” … . Here, the evidence established that there were three separate burglaries, each committed days apart in which distinct materials were stolen, and each was completed when the perpetrator left the premises with the stolen materials … . As such, the evidence established that the burglaries were separate “criminal transaction[s]” and did not demonstrate that they were “integral parts of a single criminal venture”” (CPL 40.10 [2] [a], [b]), as there was no proof that they “involve[d] planned, ongoing organized criminal activity, such as conspiracies, complex frauds or larcenies, or narcotics rings” … . Accordingly, Penal Law § 60.20 (4) (a) did not authorize restitution for the December 18 burglary, and the restitution order must be vacated … . People v Pixley, 2017 NY Slip Op 04173, 3rd Dept 5-25-17

 

CRIMINAL LAW (ALTHOUGH DEFENDANT’S GUILTY PLEA SATISFIED AN UNCHARGED BURGLARY, THE SENTENCING COURT SHOULD NOT HAVE ORDERED RESTITUTION FOR THE UNCHARGED BURGLARY)/RESTITUTION (CRIMINAL LAW, ALTHOUGH DEFENDANT’S GUILTY PLEA SATISFIED AN UNCHARGED BURGLARY, THE SENTENCING COURT SHOULD NOT HAVE ORDERED RESTITUTION FOR THE UNCHARGED BURGLARY)

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BUT FOR TEST FOR LEGAL MALPRACTICE IS NOT THE SAME AS SOLE PROXIMATE CAUSE, IT IS ENOUGH THAT AN ATTORNEY’S ACTIONS CONSTITUTE A PROXIMATE CAUSE.

The Third Department, in a lawsuit alleging breach of contract, breach of fiduciary duty and fraud (among other causes of action) stemming from the underfunding of a Workers’ Compensation benefits trust fund, determined the complaint stated a cause of action for legal malpractice. The lawyer, Gosdeck, argued that the complaint failed to allege his actions were the sole proximate cause of the injury. The Third Department reasoned that the “but for” test for legal malpractice was not the same as “sole proximate cause:”

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… [W]e reject Gosdeck’s argument that plaintiff was required to allege that he was the sole proximate cause of alleged damages. Rather, “[i]n an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused [the] plaintiff to sustain actual and ascertainable damages”… . “An attorney’s conduct or inaction is the proximate cause of a plaintiff’s damages if but for the attorney’s negligence the plaintiff . . . would not have sustained actual and ascertainable damages”… . We agree with Supreme Court that, on this motion to dismiss a claim of legal malpractice that is based on negligent legal advice given over a period of time, the “but for” standard is not synonymous with sole proximate cause and that plaintiff’s burden is to prove that Gosdeck’s negligence was a proximate cause of damages … . New York State Workers’ Compensation Bd. v Program Risk Mgt., Inc., 2017 NY Slip Op 04184, 3rd Dept 5-25-17

ATTORNEYS (LEGAL MALPRACTICE, BUT FOR TEST FOR LEGAL MALPRACTICE IS NOT THE SAME AS SOLE PROXIMATE CAUSE, IT IS ENOUGH THAT AN ATTORNEY’S ACTIONS CONSTITUTE A PROXIMATE CAUSE)/LEGAL MALPRACTICE (BUT FOR TEST FOR LEGAL MALPRACTICE IS NOT THE SAME AS SOLE PROXIMATE CAUSE, IT IS ENOUGH THAT AN ATTORNEY’S ACTIONS CONSTITUTE A PROXIMATE CAUSE)/WORKERS’ COMPENSATION LAW (LEGAL MALPRACTICE RE MANAGEMENT OF WORKERS’ COMPENSATION TRUST, BUT FOR TEST FOR LEGAL MALPRACTICE IS NOT THE SAME AS SOLE PROXIMATE CAUSE, IT IS ENOUGH THAT AN ATTORNEY’S ACTIONS CONSTITUTE A PROXIMATE CAUSE)/NEGLIGENCE (LEGAL MALPRACTICE, BUT FOR TEST FOR LEGAL MALPRACTICE IS NOT THE SAME AS SOLE PROXIMATE CAUSE, IT IS ENOUGH THAT AN ATTORNEY’S ACTIONS CONSTITUTE A PROXIMATE CAUSE

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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LIABILITY, DEFENDANT CROSSED DOUBLE YELLOW LINE, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER HIS PHYSICAL AND PSYCHOLOGICAL INJURIES MET THE NO-FAULT CRITERIA FOR SERIOUS INJURY.

The Third Department, reversing Supreme Court, over a two-justice partial dissent, determined plaintiff was entitled to summary judgment on liability in this traffic accident case and plaintiff had raised questions of fact whether he suffered serious physical and psychological injury within the meaning of the no-fault law.  Plaintiff alleged defendant’s car struck his after crossing the double yellow line and defendant had pled guilty to crossing the double yellow line. The dissent argued plaintiff did not demonstrate psychological injury and did not meet the 90/180 day no-fault criteria:

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This evidence, viewed in the light most favorable to plaintiff … , raised a triable issue of fact as to whether plaintiff’s alleged neck, back and left shoulder injuries constitute a serious injury under the significant limitation of use category  … . …

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As for plaintiff’s alleged psychological injuries, “[i]t has been established ‘that a causally-related emotional injury, alone or in combination with a physical injury, can constitute a serious injury'” … .  * * *

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… [P]laintiff proffered the affirmed narrative report of Barry Goldman, his primary care physician. Goldman stated that plaintiff visited his primary care practice more than a dozen times between August 2014 and November 2015 — three of which predated the second motor vehicle accident in September 2014 — for treatment relating to anxiety, stress, insomnia, nightmares, irritability, temperament changes and reliving and experiencing flashbacks of the June 2014 accident. Based on his review of the medical records generated from these visits, as well as his own examinations of plaintiff, Goldman concluded that plaintiff’s diagnosis of posttraumatic stress disorder was causally related to the June 2014 motor vehicle accident. He stated that, although the death of plaintiff’s wife and the second motor vehicle accident “may have added to his symptoms, the trauma of his first accident was the cause and directly related to his complaints.” This evidence was sufficient to raise a question of fact as to whether the June 2014 motor vehicle accident caused plaintiff to suffer psychological injuries constituting a significant limitation of use of a body function or system … .  Fillette v Lundberg, 2017 NY Slip Op 04180, 3rd Dept 5-24-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LIABILITY, DEFENDANT CROSSED DOUBLE YELLOW LINE, NO-FAULT,PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER HIS PHYSICAL AND PSYCHOLOGICAL INJURIES MET THE NO-FAULT CRITERIA FOR SERIOUS INJURY)/INSURANCE LAW (NO-FAULT, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER HIS PHYSICAL AND PSYCHOLOGICAL INJURIES MET THE NO-FAULT CRITERIA FOR SERIOUS INJURY)/PSYCHOLOGICAL INJURY (NO-FAULT, TRAFFIC ACCIDENTS, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER HIS PHYSICAL AND PSYCHOLOGICAL INJURIES MET THE NO-FAULT CRITERIA FOR SERIOUS INJURY)/SERIOUS INJURY (TRAFFIC ACCIDENTS, NO-FAULT, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER HIS PHYSICAL AND PSYCHOLOGICAL INJURIES MET THE NO-FAULT CRITERIA FOR SERIOUS INJURY)/TRAFFIC ACCIDENTS (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LIABILITY, DEFENDANT CROSSED DOUBLE YELLOW LINE, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER HIS PHYSICAL AND PSYCHOLOGICAL INJURIES MET THE NO-FAULT CRITERIA FOR SERIOUS INJURY)

CLAIMANT PROPERLY FOUND TO HAVE A 35% LOSS OF WAGE EARNING CAPACITY DESPITE HIS HAVING RETURNED TO WORK FULL-TIME.

The Third Department determined claimant was properly determined to have a 35% loss of wage earning capacity even though he had returned to work full-time. Because claimant had returned to work, he was not awarded any compensation. However, should his ability to work change, he would be entitled to up to 275 weeks of compensation. The court explained the different meanings of “wage earning capacity” and “loss of wage earning capacity:”

The employer argues that, because claimant returned to work full time at his preaccident wages, claimant’s wage-earning capacity at the time of classification was 100%; therefore, the employer’s argument continues, the Board’s finding that claimant sustained a 35% loss of wage-earning capacity was in error and unlawful. The employer’s argument on this point ignores the fact that the terms “wage-earning capacity” (see Workers’ Compensation Law § 15 [5-a]) and “loss of wage-earning capacity” (see Workers’ Compensation Law § 15 [3] [w]) “are to be used for separate and distinct purposes” … . As this Court recently reiterated, “wage-earning capacity is used to determine a claimant’s weekly rate of compensation,” whereas “loss of wage-earning capacity . . . is used at the time of classification to set the maximum number of weeks over which a claimant with a permanent partial disability is entitled to receive benefits” … . “Unlike wage-earning capacity, which can fluctuate based on a claimant’s employment status, loss of wage-earning capacity [is] intended to remain fixed” … . Contrary to the employer’s assertion, “[t]he durational limits imposed by Workers’ Compensation Law § 15 (3) (w) do not distinguish between claimants who are employed at the time of classification and those who are not” … . Matter of De Ruggiero v City of N.Y. Dept. of Citywide Admin. Servs., 2017 NY Slip Op 03999, 3rd Dept 5-18-17

WORKERS’ COMPENSATION LAW (CLAIMANT PROPERLY FOUND TO HAVE A 35% LOSS OF WAGE EARNING CAPACITY DESPITE HIS HAVING RETURNED TO WORK FULL-TIME)

CLAIMANT, WHO WAS UNABLE TO WORK BECAUSE OF DOMESTIC ABUSE, WAS ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS.

The Third Department, reversing the Unemployment Insurance Appeal Board, determined claimant was willing and able to work, within the meaning of the Unemployment Insurance Law, when she took a leave of absence because of domestic abuse. Claimant alleged she was unable to leave her house and walk to work because her former boyfriend would harass her both as she walked to work and at work:

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Here, the uncontroverted evidence is that claimant was ready, willing and able to work during the period in issue. Under the circumstances presented, we disagree with the Board that her leave of absence necessitated by the actions of a perpetrator of domestic abuse rendered her legally unavailable for work … . To that end, and pursuant to Labor Law § 593 (1) (b) (i), the Legislature has provided that an employee may not be disqualified from receiving unemployment insurance benefits for separating from employment “due to any compelling family reason,” which includes “domestic violence . . . which causes the individual reasonably to believe that such individual’s continued employment would jeopardize his or her safety or the safety of any member of his or her immediate family”… . The progenitor of Labor Law § 593 (1) (b) (i) was enacted  … in response to a New Jersey appeals court ruling that a woman who was forced to quit her job due to domestic violence was not entitled to collect unemployment benefits … and was intended to ensure that victims of domestic violence “may be eligible for [u]nemployment [i]nsurance” … . When the provision was amended to its current form in 2009 … , the legislative intent remained to ensure that “individuals who are voluntarily separated from employment due to compelling family reasons are eligible for [unemployment insurance] benefits” … . The Board credited claimant’s uncontroverted account that she was the victim of domestic violence, stalking and harassment, as well as her testimony that she was willing and able to work during the period in issue but was prevented from leaving her home to get to work due to her justifiable fear of further violence by her former boyfriend … .  Matter of Derfert (Commissioner of Labor),,2017 NY Slip Op 04016, 3rd Dept 5-18-17

UNEMPLOYMENT INSURANCE (CLAIMANT, WHO WAS UNABLE TO WORK BECAUSE OF DOMESTIC ABUSE, WAS ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS)/

AUNT DID NOT HAVE STANDING TO SEEK VISITATION, AWARDING ADDITIONAL VISITATION TO GRANDPARENTS NOT SUPPORTED BY THE RECORD.

The Third Department, reversing Family Court, determined: (1) the aunt did not have standing to seek visitation because there was a loving and responsible relationship between mother and child; and (2) awarding additional visitation to the grandparents was not supported by the record (no testimony taken from the grandparents):

Turning first to the merits of the aunt’s petition seeking visitation … , we find that Family Court erred in awarding visitation to the aunt inasmuch as the aunt does not have standing to seek such relief … . While the aunt and the attorney for the child contend that extraordinary circumstances exists to confer standing upon the aunt, such rule does not apply to this case … , especially where Family Court found that the mother was a “loving and responsible parent.” We further note that although the mother originally consented to the aunt having minimal visitation with the child, she later changed her position and orally moved to dismiss the aunt’s petition for visitation immediately prior to the commencement of trial … . Accordingly, Family Court erred in granting the aunt visitation with the child over the mother’s objections and the aunt’s petition should have been dismissed … . * * *

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… [W]e conclude that Family Court’s determination to award the grandparents increased visitation lacks a sound and substantial basis in the record. The increased visitation did not stem from the consideration of any documentary evidence or testimony but, instead, from Family Court’s own familiarity with the parties based upon prior petitions. Such information, however, is not part of the record … . Matter of Romasz v Coombs, 2017 NY Slip Op 04001, 3rd Dept 5-18-17

 

FAMILY LAW (AUNT DID NOT HAVE STANDING TO SEEK VISITATION, AWARDING ADDITIONAL VISITATION TO GRANDPARENTS NOT SUPPORTED BY THE RECORD)/VISITATION (FAMILY LAW, AUNT DID NOT HAVE STANDING TO SEEK VISITATION, AWARDING ADDITIONAL VISITATION TO GRANDPARENTS NOT SUPPORTED BY THE RECORD)

HEARING OFFICER’S REFUSAL WITHOUT EXPLANATION TO CALL A WITNESS TO THE INCIDENT REQUIRED ANNULMENT AND EXPUNGEMENT.

The Third Department, annulling the misbehavior determination, found the hearing officer’s refusal without explanation to call a witness to the confrontation between petitioner and guards to be a constitutional violation:

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“An inmate has a right to call witnesses at a disciplinary hearing so long as the testimony is not immaterial or redundant and poses no threat to institutional safety or correctional goals”… . This report indicated that, without provocation, petitioner punched the officer conducting the frisk in the eye. Petitioner maintained that he did not assault either officer, that the officer conducting the frisk was the aggressor, grabbing petitioner’s genitals during the frisk and punching him, and that both officers attacked him in retaliation for him filing a grievance against a fellow officer. The requested witness submitted a memorandum to his superior on the day of the incident stating that he observed the frisk, that petitioner turned off the wall and that a struggle ensued with the correction officer. According to the memorandum, the officer called for a response team and, by the time the team arrived, both petitioner and the officer involved in the altercation were inside of petitioner’s cell and out of his sight. Following the initial request for this witness at the hearing, the Hearing Officer stated that he would address the request later. Petitioner clearly requested testimony from this witness a second time and the Hearing Officer did not respond. The Hearing Officer subsequently closed the hearing without calling the witness and without providing a reason for not calling him.  Matter of Reyes v Keyser, 2017 NY Slip Op 04007, 3rd Dept 5-18-17

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER’S REFUSAL WITHOUT EXPLANATION TO CALL A WITNESS TO THE INCIDENT REQUIRED ANNULMENT AND EXPUNGEMENT)

LABOR LAW 240(1) LIABILITY IS NONDELEGABLE AND EXTENDS TO INDEPENDENT CONTRACTORS.

The Third Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. The scaffolding plaintiff was using collapsed and he fell 40 feet. The defendants alleged that the improper assembly of the scaffolding caused the collapse and plaintiff assembled the scaffolding. Therefore the defendants argued plaintiff’s acts constituted the sole proximate cause of his injuries, precluding recovery. However a contract indicated that another party was responsible for supplying safety equipment and meeting OSHA requirements. The court further noted that the general contractor (Varish) could not escape liability on the ground plaintiff was an independent contractor, not an employee:

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We find no merit in Varish’s contention that Labor Law § 240 (1) does not apply in that plaintiff was allegedly an independent contractor, not an employee. The duty to provide a safe working environment is nondelegable, and a contractor or owner and its agents may be liable “even though it exercised no control over, or supervision of, an independent contractor who performed the job” … . Griffin v AVA Realty Ithaca, LLC, 2017 NY Slip Op 03829, 3rd Dept 5-11-17

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 240(1) LIABILITY IS NONDELEGABLE AND EXTENDS TO INDEPENDENT CONTRACTORS)/INDEPENDENT CONTRACTORS (LABOR LAW-CONSTRUCTION LAW, LABOR LAW 240(1) LIABILITY IS NONDELEGABLE AND EXTENDS TO INDEPENDENT CONTRACTORS)

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