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In Jose Miguel Moran v 200 Varick Street Associates, LLC, et al., 80 A.D.3d 581; 914 N.Y.S.2d 307, The Court granted the plaintiff's motion for summary judgment on his 240(1) cause of action. The plaintiff suffered injury when he fell from a scaffold that lacked proper safety railings. Of particular interest is The Court's holding regarding intoxication of the injured worker;
"The evidence that the plaintiff was not engaged in a statutorily protected activity or was intoxicated was not admissible (see Zuckerman v City of New York, 49 NY2d 557, 563, 404 N.E.2d 718, 427 N.Y.S.2d 595; Maniscalco v Liro Eng'g Constr. Mgt., 305 A.D.2d 378, 380, 759 N.Y.S.2d 163; Madalinski v Structure-Tone, Inc., 47 AD3d at 688). Moreover, since the scaffold lacked safety railings, the defendant's alleged intoxication was not the sole proximate cause of his injuries (see Bondanella v Rosenfeld, 298 AD2d 941, 942, 747 N.Y.S.2d 645; Podbielski v KMO-361 Realty Assocs.., 294 A.D.2d 552, 553-554, 742 N.Y.S.2d 664; Sergeant v Murphy Family Trust, 284 AD2d 991, 992, 726 N.Y.S.2d 537)."
The New York Construction Accident Lawyers at Gair, Gair, Conason, Steigman, Mackauf, Bloom and Rubinowitz have years of experience representing construction workers who have suffered injury in construction accidents in New York.
In Gasques v. State of New York, 15 N.Y.3d 869, 910 N.Y.S.2d 415 (Ct. Apps. 2010), , a two paragraph decision with regard to Section 240(1) the Court stated as follows:
“Claimant Wanderlei Gasques was injured while repainting the inside of a leg of the Kosciuszko Bridge, using a ‘spider scaffold.’ His hand was injured when it became caught between the scaffold and the leg of the bridge, while the scaffold was ascending.
With respect to claimants’ Labor Law §240(1) cause of action, the parties agree that Gasques’s hand was crushed because the scaffold continued to move, under the impetus of one of its motors, while his hand was trapped between an external motor control on the scaffold and the steel of the bridge. This injury was not the direct consequence of the application of the force of gravity to an object or person (see Runner v. New York Stock Exch., Inc., 13 NY3d 599, 604, 922 N.E.2d 865, 895 N.Y.S.2d 279 [2009]; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501, 618 N.E.2d 82, 601 N.Y.S.2d 49 [1993]). Therefore claimants’ Labor Law §240(1) claim was properly dismissed.”
On first reading this decision one might conclude that in future cases a defendant might argue that there is no Section 240(1) liability if;
1. A motorized hoist or scaffold is involved.
2. Gravity is not involved if the hoist or scaffold is going up.
3. No 240(1) liability because no elevation related differential.
If one watches the oral argument on The New York Court of Appeals web site one could reasonably conclude that the basis of the decision was that the scaffold was going up since The Justices asked numerous questions as to how gravity could be involved since the scaffold was going up.
It is submitted that the basis for the Court’s decision had nothing to do with the scaffold being motorized or the fact that it was going up but the fact that there was no elevation related differential involved. This seems clear since the Court cited Runner v. New York Stock Exchange, supra.
In a recent article, the New York Law Journal joined with lawyers and law firms in celebrating the 40th Anniversary of the National Institute for Trial Advocacy. NITA, as many lawyers know it, is widely recognized as the premier training center for trial lawyers in the United States.
Our partner, Ben Rubinowitz, has been an active faculty member and Team Leader at NITA for more than 25 years and is a member of its Board of Directors. "I consider it a privilege to be a member of such a fine and distinguished organization," said Rubinowitz. "NITA has helped to train some of the best trial lawyers in the Country and I am proud to be a part of this organization." Known for its expertise in the field of personal injury law, the lawyers at Gair Gair Conason Steigman Mackauf Bloom and Rubinowitz have obtained some of the largest awards in the country for victims of motor vehicle accidents, construction accidents, products liability cases, medical malpractice and civil rights cases.
