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Failing to Preserve Arguments for an Appeal and Facts that “May or May Not” Exist (NY)

September 14, 2018

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<p style="text-align: justify;">In <a href="http://blog.wcmlaw.com/wp-content/uploads/2018/09/Gordon-v-City-of-New-York.pdf">Gordon v City of New York</a>, the plaintiff sued the LIRR, the City of New York, and the Metropolitan Transportation Authority ("MTA") for injuries that occurred while performing excavation of rock under Grand Central Terminal.  Plaintiff fell from a ladder that slipped out from plaintiff and he fell to the tunnel floor while fixing lights 15-20 feet above him.  The defendants moved for summary judgment dismissing the complaint, which included Labor Law §§ 240(1) and 241(6) claims while the plaintiff moved for summary judgment on the issue of liability on the Labor Law §240(1) claim.  The lower court entered an order granting the City of New York and the LIRR’s motions for summary judgment and denying plaintiff’s motions against all defendants.</p>
<p style="text-align: justify;">On appeal, the First Department affirmed the order granting the City of New York and the LIRR’s motions because affidavits were submitted based on the affiant's work and job duties for the City of New York and the LIRR and their knowledge of and familiarity of their business operations.  The affidavits established that they did not contract for plaintiff’s work, nor did these defendants perform, supervise, or control any construction work at the subject premises.  As plaintiff’s sole theory of the City’s ownership was that it owned land on which the project was located was not raised before the motion court, it was not properly before the Court.  The plaintiff did not raise any other evidence to dispute the claims and the order granting summary judgment for the City of New York and the LIRR were affirmed.</p>
<p style="text-align: justify;">However, on appeal, plaintiff's entitlement under Labor Law §240(1) against the MTA, however was successfully argued because the record established a failure to provide plaintiff with proper protection for him to perform the elevation-related task of re-positioning the stadium light.  The MTA’s opposition with an engineer’s testimony that there “may or may not have been” platforms available to tie the ladder to, was not enough to raise a triable issue of fact.  The lower court reversed as to the MTA.</p>
<p style="text-align: justify;">This opinion contains a lesson about the long term effects of failing to raise an argument in the motion court that not only affects the decision in the motion court, but also affects the appeal.  Thus, it is important to have counsel with the foresight to preserve arguments in anticipation of appeal.</p>
<p style="text-align: justify;">Furthermore, the case also demonstrates the importance of early defense counsel oversite in investigating the facts and witnesses with knowledge in anticipation of motion practice.  Experienced counsel will be able to deal with gaps of knowledge from the witnesses provided by an insured.  Rather than rely on such ambiguous testimony regarding things that “may or may not” exist, experienced counsel should take steps to investigate further to find records or other witnesses  that may have actual knowledge of the circumstances of the accident that fill in those gaps to prevent a plaintiff being granted an early summary judgment.</p>
Thanks to Jonathan Pincus for his contribution to this post.

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