In this New York Construction Accident case The Second Department granted plaintiff"s motion for summary judgment on his 240(1) cause of action. The facts as set forth by the Court were as follows;
"In August 2004 the plaintiff was working as a carpenter on a project involving renovation of office space for the lessee of that space, the defendant Orthopedic Associates of Dutchess County, P.C. (hereinafter the defendant). The plaintiff alleged that debris, including metal studs 10 to 12 feet long, were thrown down a chute from the fourth floor of the subject building, and that he was responsible for unclogging the bottom of the chute on the ground floor. He further alleged that he was injured when, while clearing the chute, he was struck on the hand and lower arm by one of those metal studs that had either been (a) deposited into the chute on the fourth floor and fell down the interior of the chute before striking him as he worked on the ground floor, (b) deposited into the chute on the fourth floor, and became blocked by a stud lodged near the bottom of the chute, but again began to fall when the plaintiff dislodged the lower stud, or (c) lodged near the bottom of the chute, but had become dislodged when another metal stud fell several stories down the interior of the chute and struck it."
In granting the motion the Court citing Runner stated, " The Court of Appeals has recently stated that "the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d at 603). The Court went on to state;
" The debris that was being removed from the fourth floor was thrown down a chute, and the plaintiff alleged that his injuries were caused by the descent of a 10-to-12-foot-long metal stud from the fourth floor—either striking him directly or striking a lodged stud that became dislodged and thereafter struck him—or by a metal stud falling from above or atop another metal stud that he was in the process of removing from the chute. These scenarios implicate the protections of Labor Law § 240(1), because, in any of these situations, the plaintiff's injuries were caused either by the inadequacy of the chute in protecting him from the elevation-related risk resulting from the disposal of the debris down that chute, or the failure to employ hoists, pulleys, or scaffolds for the removal of the debris, which might have provided the necessary protection (see Baker v Barron's Educ. Serv. Corp., 248 AD2d 655; cf. Roberts v General Elec. Co., 97 NY2d 737, 738; Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268-269)."
Although the Court did cite Narducci, see our prior post from March 2010, New York Construction Accidents-The Demise of "Secured" in Falling Object Cases?
On December 28, 2010 the New York Law Journal featured GGCSMB&R attorney Ben Rubinowitz and his colleague Evan Torgan, of Torgan & Cooper. For the past ten years Ben Rubinowitz and Evan Torgan have provided expert commentary in their Trial Advocacy column to attorneys throughout the State. To date, the two have written more than 50 articles on Trial Advocacy. Known for practicing what they preach, both Evan and Ben have achieved multiple million dollar verdicts. In this months article they discuss Common Mistakes on Direct Examination. "Too often lawyers rush through direct and fail to listen appropriately to the answers that are given by the witness" said Rubinowitz. "This has the potential to result in disaster. That's why in this article we focus on ways to cure this problem, simplify the examination and make the testimony more meaningful for the jury.
