A “Feigned Issue Of Fact” Not Sufficient To Defeat Summary Judgment (NY)
In Fonck v. City of New York, 2021 NY Slip Op 05693 (2021), while plaintiff was trying to retrieve his pliers, laying approximately five feet away from him, he allegedly tripped and fell on a concealed piece of pipe underneath plastic sheeting, causing him to fall and sustain injuries. The Supreme Court, Kings County had granted defendants’ motion for summary judgment dismissing plaintiff’s causes of action alleging violations of Labor Law §200 and §241(6), and common-law negligence. Upon appeal, the Second Department reversed with respect to common Law negligence and Labor Law §200 but affirmed the dismissal of the Labor Law §241(6).
With respect to his Labor Law §241(6), Second Department held that defendants established prima facie that 12 NYCRR 23-1.7(d) relating to slipping hazards, was inapplicable. Despite the affidavit of plaintiff’s foreman submitted describing the work as “wet and slippery due to recent rainfall,” plaintiff did not contend that the slipper condition was related to the accident. As such, plaintiff only raised a feigned issue of fact, and his affidavit contradicted his earlier deposition testimony submitted by defendants that his fall was caused by the concealment of the pipe.
So, despite the inconsistent testimonies submitted by both parties to be a “feigned issue of fact,” it was not enough to warrant dismissal of summary judgment. This case is a good example of a plaintiff attempting to muddy the waters and create a disputed material fact – but the Court determined that the “fact” was not material.
Thanks to Gina Rodriguez for her contribution to this post. If you have any questions, please contact Matthew Care.