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Second Department Affirms Labor Law SJ Denial Due to Conflicting Accident Accounts (NY)

December 3, 2018

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In <em><a href="">Giannas v 100 3rd Ave Corp</a>, </em>Plaintiff was repairing fencing on the fourth floor of a building when he noticed what appeared to be a metal stud nailed across an open window. Plaintiff crawled onto the scaffolding outside the building  to knock the stud into the building by hitting it with his hammer. However, the scaffolding moved toward the street, causing him to lose his balance and fall through the window, into the building.

Plaintiff alleged violations of Labor Law §§ 200, 240(1) and 241(6), and moved for summary judgment on Labor Law §240(1) cause of action but the Court denied the motion. In addition, the Court granted the construction manager’s motion for summary judgment dismissing the complaint as asserted against it. Finally, the Court granted the subcontractor scaffolding company’s motion for summary judgment dismissing the Labor Law §§ 200, 240(1), and 241(6) causes of action, and denied that branch of its motion which was for summary judgment dismissing the common-law negligence cause of action. Plaintiff and the scaffolding supply and installation company appealed the Court’s decision.

On appeal, the Second Department affirmed the lower court’s order granting the construction manager summary judgment on Labor Law §240(1) reasoning that the construction manager had no control of the means and methods of work under the contract and did not control the work or supervise safety.  The Appellate Court further affirmed the lower court's denial of plaintiff’s motion for summary judgment on Labor Law §240(1)because there were conflicting accounts of how plaintiff fell, including whether he had ever mentioned that the scaffold moved causing him to fall.  Finally, the subcontractor’s motion for summary judgment on common-law negligence was denied because of question of subcontractor’s affirmative negligence for launching an instrumentality of harm under Espinal, which also required denial of subcontractor’s motion on contractual indemnity.

Thanks to Meg Adamczuk for her contribution to this post.  Please email <a href="">Brian Gibbons</a> with any questions.


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