New York Personal Injury Attorneys Blog

TRIAL PRACTICE Richard M. Steigman, Esq. Gair Gair Conason Steigman Mackauf Bloom & Rubinowitz

Our attorney Richard Steigman will be speaking at the The New York State Trial Lawyers Association Decisions 2011 program on November 2, 2011. The topic he will be speaking on is Trial Practice. This annual event is the most comprehensive and effective way to review last year's decisions, amendments and other changes in New York tort law.

CLICK HERE TO REGISTER OR ORDER DISCS

INFORMATION:

Wednesday, November 2, 2011: 9am to 5pm

Huntington Hilton
598 Broadhollow Road
Melville, NY 11747
Tel: (914) 631-5700

The New York County Lawyers' Association is presenting a Public Forum on Judicial Independence. Among the issues to be discussed include: The debate over whether Judicial Disciplinary Hearings should be open or closed and what the press' responsibility should be to ensure balanced reporting of public accusations against a judge. Ben Rubinowitz of GGCSMB&R will be a featured speaker at this conference. Mr. Rubinowitz, known as a "Trial Lawyer's Trial Lawyer," who represents severely injured individuals in personal injury and medical malpractice cases, has also represented a number of judges in disciplinary matters before the NYS Judicial Conduct Commission. In a statement Rubinowitz said " I am honored to participate in this conference with such esteemed members of the Trial Bar and Judiciary."

The conference will take place on:

Wednesday, November 2, 2011 from 6:00 - 8:00pm

14 Vesey Street, New York, NY

RSVP: http://bit.ly/qkni6c

Download flyer:

In a must read case The New York Court of Appeals in Wilinski v. 334 East 92nd Housing Development Fund Corp., et al., decided October 25, 2011, 2011 NY Slip Op 7477, held that;

"Some New York courts have interpreted our decision in Misseritti v Mark IV Constr. Co. (86 NY2d 487 [1995]) to preclude recovery under Labor Law § 240 (1) where a worker sustains an injury caused by a falling object whose base stands at the same level as the worker. We reject that interpretation and hold that such a circumstance does not categorically bar the worker from recovery under section 240 (1). However, in this case, an issue of fact exists as to whether the worker's injury resulted from the lack of a statutorily prescribed protective device."

The Court went on to explain Misseritti;

"We do not agree that Misseritti calls for the categorical exclusion of injuries caused by falling objects that, at the time of the accident, were on the same level as the plaintiff. Misseritti did not turn on the fact that plaintiff and the base of the wall that collapsed on him were at the same level. Rather, just as in Narducci, the absence of a causal nexus between the worker's injury and a lack or failure of a device prescribed by section 240 (1) mandated a finding against liability (see Misseritti, 86 NY2d at 490-491; Narducci, 96 NY2d at 268-269). Thus, we decline to adopt the "same level" rule,which ignores the nuances of an appropriate section 240 (1) analysis."

The opinion contains an excellent discussion of recent case law in this area of construction accident claims brought pursuant to 240(1) and again is a must read.

In a 3-2 decision The New York Appellate Division, 3d Department, in GROVE v. CORNELL UNIVERSITY et al., 75 A.D.3d 718; 904 N.Y.S.2d 559; 2010, denied plaintiff's motion for summary judgment on his 2401(1) claim while granting defendants' cross motion dismissing the claim holding that plaintiff's own negligent conduct was, as a matter of law, the sole proximate cause of his injuries. The facts as set forth by the majority were;

"Defendant Cornell University hired defendant Skanska USA Building, Inc. as the general contractor to construct a building on its campus. Skanska subcontracted the window work to Clayton B. Obersheimer, Inc., which employed plaintiff as a glazier. Plaintiff and a coworker, William Sobel, were performing work installing rubber membranes and metal flashing on the second story windows of the building. To reach the windows, plaintiff and Sobel utilized a mechanical telescoping boom lift, as they had done previously. Attached to the boom lift was a metal basket in which plaintiff, Sobel, their tools and materials were situated. Three of the four sides of the basket were enclosed by permanent metal rails. The fourth side was enclosed by a metal gate that opened into the basket to allow for ingress and egress of the workers. The gate was designed with a spring-loaded hinge so as to automatically swing the gate to a closed position when not in use. Plaintiff and Sobel were also provided with safety harnesses and lanyards that were to be attached to the basket to prevent them from falling out of the basket while it was in the raised position. Following a work break and the retrieval of additional materials, plaintiff and Sobel reentered the lift basket and plaintiff began operating the lift, raising it to the second floor. Sobel noticed that plaintiff had not attached the lanyard on his harness to the basket and reminded him to do so. Sobel then began work on a window and, within moments, turned around and saw that plaintiff was gone and the gate was in the open position. Plaintiff fell at least 30 feet, landed on a narrow slab of concrete below and suffered significant injuries"

The majority found that the fact that the spring-loaded hinge was not operating properly did not render the gate defective and that if plaintiff had either attached his lanyard as required or closed and latched the gate manually, the provided safety devices would have prevented him from falling out of the basket. The dissent argued based on BLAKE and DUDA, that once a violation of 240(1) is shown a plaintiff's conduct can't be held as a matter of law to be the sole proximate cause of his accident, stating;

"Since we believe that the record contains factual issues regarding the Labor Law § 240 (1) cause of action, we respectfully dissent. The proof is viewed at this procedural point in the light most favorable to the party opposing summary judgment (see Kropp v Corning, Inc., 69 AD3d 1211, 1212, 893 N.Y.S.2d 371 [2010]). Plaintiff was working at a height exceeding 30 feet in a basket affixed to a boom lift. It is undisputed that the gate on the basket was not functioning properly and did not close as designed. Plaintiff testified at his deposition that he was familiar with the self-closing safety feature of the gate having used baskets so equipped previously, and that he was unaware of the gate's defective condition before his accident. Plaintiff was located immediately adjacent to the broken gate and, while working, he fell out of that gate. A jury could determine that this safety device was defective, plaintiff was not aware of the defect and he fell through the opening created by the defect.

Plaintiff was also supplied with a harness and lanyard that he conceded was either not attached or improperly attached at the time he fell. Neglecting to use an available safety device can result in dismissal when a defendant proves that a worker's "own conduct, rather than any violation of Labor Law § 240 (1), was the sole proximate cause of [the worker's] accident" (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40, 823 N.E.2d 439, 790 N.Y.S.2d 74 [2004] [emphasis added]). Indeed, a "defendant may be granted summary judgment if the record establishes conclusively that no Labor Law § 240 (1) violation was shown to have been a proximate cause of the accident and that the accident was therefore caused solely by [the] plaintiff's conduct" (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289, 803 N.E.2d 757, 771 N.Y.S.2d 484 n 8 [2003] [emphasis added]). A plaintiff, however, can defeat summary judgment by showing that a "'violation of section 240 (1) was a contributing cause of his [or her] fall'" (id. quoting Duda v Rouse Constr. Corp., 32 NY2d 405, 410, 298 N.E.2d 667, 345 N.Y.S.2d 524 [1973]).

Here, there is sufficient evidence in the record from which a jury could find that the failure to provide an adequate safety device, to wit, a basket with a properly operating, self-closing gate, in violation of Labor Law § 240 (1), was a contributing cause to plaintiff's fall. Moreover, defendants have not shown conclusively that the defective gate on the basket was not a proximate cause of this accident, nor have defendants established that plaintiff's conduct was the sole proximate cause of the accident (cf. Torres v Monroe Coll., 12 AD3d 261, 262, 785 N.Y.S.2d 57 [2004]). A jury should make those determinations (see Cammon v City of New York, 21 AD3d 196, 200, 799 N.Y.S.2d 455 [2005]). While plaintiff was properly denied summary judgment on this record (see Tronolone v Praxair, Inc., 22 AD3d 1031, 1033, 804 N.Y.S.2d 520 [2005]), we are not persuaded that defendants established that they were entitled to summary dismissal. Accordingly, we would modify Supreme Court's order by reversing so much thereof as granted defendants' cross motion for summary judgment dismissing plaintiff's Labor Law § 240 (1) cause of action."

The Court of Appeals, obviously adopting the dissents opinion, in a three paragraph Memorandum decision held;

"Triable issues of fact exist as to whether defendants failed to provide an adequate safety device to plaintiff in violation of Labor Law § 240 (1) or whether plaintiff’s conduct was the sole proximate cause of his injuries." 2011 NY Slip Op 7258, October 18, 2011.

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In a 3-2 decision The New York Appellate Division, 1st Department affirmed the granting of summary judgment to a construction worker on his 240(1) claim. In Reavely v.Yonkers Raceway Programs, Inc., et al., decided on October 20, 2011, the worker suffered injury while assisting in the installation of a hang wall at the edge of a building foundation. The pertinent facts as to the happening of the accident were set forth by The Court;

"Approximately 10 minutes before plaintiff approached the wall to make the cut, another contractor had finished installing waterproofing on the surface of the foundation where plaintiff would be doing the work. Plaintiff knew that it ordinarily takes at least 20 minutes for the waterproofing, which is a tar-like, viscous material, to dry. However, he was directed to make the cut immediately and did not want to defy his supervisor by waiting until he could be certain that the surface was safe. Plaintiff tested the material, and it appeared dry enough to stand on, so he commenced his work. As he was completing the cut, he attempted to replant his right foot and slipped on the viscous waterproofing. According to plaintiff's affidavit submitted in connection with the subject summary judgment motions, "When I slipped I lost my balance. My body was pulled forward and I hovered over the uncovered 10 feet trench edge without fall protection. It was 10 feet deep there because that particular section had not been backfilled. I felt that I was about to go over the edge. I reacted immediately and instinctively to teetering by trying to stand up. I also desperately tried to counter the momentum pulling me over the edge by arching back. I knew that I was holding a potentially lethal saw which I was about to go over ]with, or even worse, on. Worried about hitting my leg as well and in the process of teetering and desperately trying to prevent myself from going fully over the trench edge, my right hand came off the operating saw and it struck my right hand, thumb and forefinger before it dropped." Thus, according to plaintiff's uncontested version of events, he did not actually sustain his injury by falling into the trench, but rather by attempting to prevent himself from falling."

In rejecting the defendants' attorney's assertion that plaintiffs' Labor Law § 240(1) claim should be dismissed because plaintiff did not fall from a height, and no object fell upon him from above it held;

"In Runner v New York Stock Exch., Inc. (13 NY3d 599, 604 [2009]), the Court of Appeals confirmed that the touchstone of any case under Labor Law § 240(1) is "whether the harm flows directly from the application of the force of gravity." Consistent with that concept, a long line of cases makes clear that a worker may recover pursuant to Labor Law § 240(1) if he is injured by a gravity-related accident, even if he did not actually fall (see e.g. Pesca v City of New York, 298 AD2d 292 [2002]; Carroll v Metropolitan Life Ins. Co., 264 AD2d 336 [1999]; Dominguez v Lafayette-Boynton Hous. Corp., 240 AD2d 310 [1997]). This Court has consistently held that the statute applies where a worker was injured in the process of preventing
himself from falling (see e.g. Pesca, 298 AD2d at 292; Suwareh v State of New York, 24 AD3d 380 [2005]), or preventing himself from being struck by a falling object (see e.g. Lopez v Boston Prop. Inc., 41 AD3d 259 [2007]; Skow v Jones, Lang & Wooten Corp., 240 AD2d 194 [1997], lv denied 94 NY2d 758 [1999]). Indeed, Suwareh (24 AD3d at 380) presents facts strikingly similar to this case. There, the claimant, who was standing on a roof, was hauling a bucket of hot tar up to the roof by pulling a rope. The bucket got stuck on a ledge of the building, and, while attempting to free it, the claimant lost his balance. He leaned back so as not to fall off the roof, and as he did so, he lost control of the bucket, whose contents spilled on to his feet. This Court [*3]held that "the risk of injury was the direct result of the application of gravity to either claimant himself or the materials being hoisted" (24 AD3d at 381).

The Second Department has followed the same reasoning. In Ienco v RFD Second Ave., LLC (41 AD3d 537 [2007]), the plaintiff and his partner, while standing on a plank, were directed to remove a beam and pass it to coworkers six feet below them. When the plaintiff moved his end of the beam, it struck him in the arm. This caused him to lose his balance and "almost" fall. He was able to avoid falling by bracing his foot against a piece of metal. In doing so, however, he hit his head against a metal column and injured himself. The court rejected the plaintiff's claim to the extent it alleged that the beam that struck him in the arm was a "falling object" (41 AD3d at 539). However, to the extent the plaintiff alleged that he was a "falling worker," the court found that the defendants did not establish prima facie their entitlement to summary judgment, since " it is of no consequence that plaintiff allegedly sustained injuries as he prevented himself from falling further'" (id., quoting Ortiz v Turner Constr. Co., 28 AD3d 627, 628 [2006]).

In this case, defendants argue that the effects of gravity did not proximately cause plaintiff's injuries because he would have taken the same course of action and sustained the same injury even if there had been no trench in his immediate vicinity. They attempt to create a distinction between plaintiff's slip on the waterproofing and his sensation of falling. They do this by seizing on plaintiff's statement in his affidavit, and elsewhere, that he "reacted immediately and instinctively" as proof that he was merely attempting to recover from the sensation of slipping on the waterproofing, as opposed to the sensation of falling. However, the record demonstrates that plaintiff's slip on the surface cannot be separated, temporally or otherwise, from the act of his beginning to fall into the open trench.

Indeed, defendants ignore the balance of plaintiff's affidavit, in which he clearly stated that he was injured while responding to the sensation of actually falling into the trench. Plaintiff stated that he "was pulled forward and . . . hovered over the uncovered 10 feet trench edge" (emphasis added). He "felt that [he] was about to go over the edge," and stated that he was "teetering" and that there was "momentum pulling [him] over the edge" (emphasis added). Defendants do not contest these facts, which clearly show that plaintiff was not experiencing just the sensation of slipping when he took the course of action that led to his injury. Rather, it was the absence of a safety device such as a cover on the trench or a safety harness, that caused plaintiff to do what he did and was the proximate cause of his injuries.

The lack of a safety device was a violation of Labor Law § 240(1), and was the proximate cause of plaintiff's injuries. In concluding otherwise, the dissent is simply wrong. There is no evidence here by which a rational trier of fact could find that the presence of the trench did not play a substantial role in causing plaintiff to react the way he did. Indeed, the dissent can only take the position it does by ignoring the undisputed facts in the record and the well established case law, discussed above, that permits recovery under the statute where a worker is injured while successfully fighting the force of gravity."

The dissent asserted that the 240(1) claim should have been dismissed since;

"Here, plaintiff was working on a level concrete slab at the time of the accident. He was injured when a small section of waterproofing slipped out from under him and caused him to lose his footing, and the circular saw he was using cut into his hand. Plaintiff's injury resulted from his loss of balance on a slippery level surface, which is not related to the effect of gravity and would have occurred regardless of whether a trench was nearby. He did not fall into the trench. Therefore, any failure to cover the trench or to equip plaintiff with a harness was not the proximate cause of his injury. The record fails to provide any explanation sufficient to relate the injury sustained to the operation of the force of gravity (see Runner v New York Stock Exchange, Inc., 13 NY3d 599 [2009], supra). Rather, plaintiff's injury resulted from "the type of peril a construction worker normally encounters on the job site" (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491 [1995]). The effect of gravity here was at best tangential (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).

The cases cited by the majority in support of recovery under Labor Law § 240(1) are either distinguishable or do not state the circumstances under which injury was sustained (see e.g. Pesca v City of New York, 298 AD2d 292 [2002]; Carroll v Metropolitan Life Ins. Co., 264 AD2d 336 [1999]). Dominguez v Lafayette-Boynton Hous. Corp. (240 AD2d 310 [1997]) is distinguishable in that the force of gravity acted on a motorized scaffold, five stories above the ground, causing it to swing back toward the face of the building and resulting in injury to the plaintiff's wrist. In Suwareh v State (24 AD3d 380 [2005]), the plaintiff was hoisting a bucket of hot tar when it got stuck and the tar spilled onto his feet. The facts in Suwareh clearly implicate a gravity-related risk under Labor Law § 240(1) and are distinguishable from the facts of this case.

Moreover, the injury sustained by plaintiff was not proximately caused by the absence of a safety device such as a hoist, sling, hanger, rope, harness or barrier, or a cover for the trench, so as to state a viable cause of action under Labor Law § 240(1) (see Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914, 916 [1999] [no § 240(1) liability where injury results "from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first instance"]; cf. Suwareh, 24 AD3d at 381 [absence of hoist and proper brace]; Pesca, 298 AD2d at 293 [railing]; Carroll, 264 AD2d at 336 [unspecified safety device]; Dominguez, 240 AD2d at 312 [proper protection compromised by obstruction]; Skow, 240 AD2d at 194 ["the ship's ladder proved inadequate"]). Under the circumstances of this case, summary judgment should have been granted in favor of defendants dismissing plaintiffs' Labor Law § 240(1) claim."

This year's program will focus on specific types of cases frequently encountered in motor vehicle litigation. Our Partner, Christopher L. Sallay is the Program Co-Chair of this New York State Bar Association program and will be speaking at the New York and Long Island program. Our partner, Howard S. Hershenhorn will also be speaking at the program. Below are Links to the locations, dates and description of the Program.

There are four Statewide Locations-- Click on one of the links below for complete program information and to register online. Program time for all locations: 9:00 a.m. – 4:30 p.m.

Tuesday, November 8, 2011 Long Island www.nysba.org/MVALongIsland	Wednesday, November 9, 2011 Albany www.nysba.org/MVAAlbany
Thursday, November 10, 2011 New York City www.nysba.org/MVANewYork	Wednesday, November 16, 2011 Syracuse www.nysba.org/MVASyracuse

On Tuesday, November 1, 2011, Cardozo Law School will hold a seminar on Opening Statements for more than 100 students as a prerequisite to its Intensive Trial Advocacy Program (ITAP). Featured Speakers at the lecture include Ben Rubinowitz, and Judith Livingston. Both Rubinowitz and Livingston have been recognized as two of the most successful Trial Lawyers in New York and both are members of the Inner Circle of Advocates -- a group of the top 100 Trial Attorneys in the Country. Each of these speakers has obtained multiple million dollar verdicts in areas including Medical Malpractice claims, Automobile Accident cases, Construction Accident cases, Products Liability claims and Civil Rights violations. In the past both Rubinowitz and Livingston have been asked to give demonstrations of their successful Trial Techniques at the annual Continuing Legal Education program "Masters of Trial Law Seminar." Rubinowitz stated "It is an honor to be asked to participate in this program. I am delighted that Judy Livingston will be joining me in this event."

Learn more about ITAP:

In a New York construction accident case in which a worker suffered injury when he fell from a scaffold The Court rejected the recalcitrant worker defense. In Mazurett v. Rochester City School District, decided by The New York Appellate Division, 4th Department on October 7, 2011, the construction worker sustained injury when he fell from a collapsing scaffold at a construction site. In affirming the granting of summary judgment for the plaintiff on his 240(1) claim the Court rejected the defense that the plaintiff was a recalcitrant worker whose conduct was the sole proximate cause of the accident holding;

"Plaintiffs met their initial burden of establishing a prima facie violation of Labor Law § 240 (1). The fact that the scaffold collapsed “is sufficient to establish as a matter of law that the [scaffold] was not so ‘placed . . . as to give proper protection’ to plaintiff” pursuant to the statute (Dean v City of Utica, 75 AD3d 1130, 1131; see Tapia v Mario Genovesi & Sons, Inc., 72 AD3d 800, 801; see also Cantineri v Carrere, 60 AD3d 1331). In opposition to the motion, defendant failed to raise a triable issue of fact whether plaintiff’s “own conduct, rather than any violation of Labor Law § 240 (1), was the sole proximate cause of his accident” (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40). We reject defendant’s contention that plaintiff was a recalcitrant worker whose own actions were the sole proximate cause of the accident. Although defendant submitted evidence that plaintiff was instructed to use a more stable scaffold and to use a ladder to ascend the scaffold, defendant failed to submit any evidence that plaintiff refused to use a particular scaffold or ladder that was provided to him. “The mere presence of [other safety devices] somewhere at the work site” does not satisfy defendant’s duty to provide appropriate safety devices (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 524, rearg denied 65 NY2d 1054; see Williams v City of Niagara Falls, 43 AD3d 1426; Whiting v Dave Hennig, Inc., 28 AD3d 1105, 1106). Even assuming, arguendo, that plaintiff was negligent, we conclude that his own conduct cannot be deemed the sole proximate cause of the accident inasmuch as plaintiffs established that a statutory violation was a proximate cause of plaintiff’s injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290; Calderon v Walgreen Co., 72 AD3d 1532, appeal dismissed 15 NY3d 900)."

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In Schick v. 200 Blydenburgh, LLC, et al., 2d Department decided October 4, 2011, the plaintiff sustained injury when he fell from a ladder on which he was standing. The Court set forth the facts as follows;

"On March 9, 2007, the date of the subject accident, Pal Supply had not yet moved into the premises. That morning, the injured plaintiff (hereinafter the plaintiff), a field technician for Verizon, was assigned to provide telephone service for Pal Supply at the warehouse. According to the plaintiff's deposition testimony, upon arrival at the warehouse, he discovered that the installation of three telephone lines would involve connecting the terminal located at the telephone pole on the road to an existing underground wire leading to a serving terminal located inside the rear of the warehouse. The plaintiff testified that he thought he would then install the Network Interface Device (hereinafter the NID), which would house the three telephone lines, a few feet from this serving terminal. However, according to the plaintiff, a Pal Supply employee told him to run a wire from the serving terminal along the ceiling to an area above the office doorway, and to install the NID over the doorway.

The plaintiff further testified at his deposition that he installed the cross connection wire from the telephone pole terminal to the underground wire, tested the dial tone at the serving terminal, and attached the wire from the serving terminal along the wall leading from the serving terminal up to the ceiling. The plaintiff attached the wire to existing structural trusses using plastic zip ties, slicing off the tails of the ties with a diagonal cutter. As the plaintiff was attaching the wire to the trusses that were near the ceiling, which were approximately 20 feet high, he felt the ladder on which he was standing shift up and down, the bottom of the ladder slid out, and the plaintiff fell to the floor. The plaintiff alleged that the ladder slipped or shifted due to sand, dirt, or dust on the floor."

In reversing the granting of summary judgment on the plaintiffs' 240(1) and 241(6) causes of action the Court held;

"The defendants failed to show, prima facie, that they were entitled to judgment as a matter of law dismissing the Labor Law §§ 240(1) and 241(6) causes of action insofar as asserted against each of them. Labor Law § 240(1) provides protection from elevation-related risks for workers engaged in the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Labor Law § 240[1]). " [A]ltering' within the meaning of Labor Law § 240(1) requires making a significant physical change to the configuration or composition of the building or structure" (Joblon v Solow, 91 NY2d 457, 465). The plaintiff's work constituted a significant physical change and, therefore, falls under the enumerated activity of "altering" within the meaning of Labor Law § 240(1) (see Scotti v Federation Dev. Corp., 289 AD2d 322; Bedassee v 3500 Snyder Ave. Owners, Corp., 266 AD2d 250, 250-251; Zgoba v Easy Shopping Corp., 246 AD2d 539, 540; Walsh v Applied Digital Data Sys., 190 AD2d 731; see also Di Giulio v Migliore, 258 AD2d 903; cf. LaGiudice v Sleepy's Inc. 67 AD3d 969, 971; Becker v ADN Design Corp. 51 AD3d 834, 836-837; Rhodes-Evans v 111 Chelsea LLC, 44 AD3d 430; Enge v Ontario County Airport Mgt. Co, LLC, 26 AD3d 896, 898; Acosta v Banco Popular 308 AD2d 48, 49; Luthi v Long Is. Resource Corp. 251 AD2d 554, 556; Cosentino v Long Is. R.R., 201 AD2d 528; Smith v Pergament Enters., of S.I., 271 AD2d 870, 870-871). The plaintiff's work also constituted construction work under Labor Law § 241(6) (see 12 NYCRR 23-1.4[b][13]; Becker v ADN Design Corp., 51 AD3d at 837; Smith v Pergament Enters. of S.I., 271 AD2d 870; Chavious v Friends Academy, 213 AD2d 509). Therefore, the Supreme Court erred in granting the motion of Pal Supply and those branches of the cross motion of 200 Blydenburgh which were for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) causes of action on the ground that the plaintiff's work did not fall under an enumerated activity within the meaning of section 240(1) of the Labor Law and did not constitute construction work within the meaning of section 241(6) of the Labor Law."

The Court denied plaintiffs' cross motion for summary judgment holding;

"The Supreme Court properly denied the plaintiffs' cross motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor law § 240(1). The plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law, as issues of fact exist regarding the height at which the plaintiff was working, the condition of the floor, the condition of the rubber feet of the extension ladder, and whether the plaintiff's positioning of the ladder was the sole proximate cause of the accident (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 288-289; Delahaye v Saint Anns School, 40 AD3d 679, 682)."

In Delaney v. Town Sports International, doing business as New York Sports Club, et al., 2d Department decided on October 4, 2011, the Court was with faced with the age old question of trivial or de minimis defects.

The plaintiff suffered injury as a result of falling over a moveable wooden platform which had been placed on the tile floor of a sauna located within the defendants' premises. The platform was 1½ inches off the floor with a ½ inch lip or overhang, and was located approximately 9½ inches from the sauna entrance door. The defendants moved for summary judgment contending, among other things that any alleged defect was trivial in nature. In denying defendants' motion for summary judgment The Court held;

""Whether a dangerous or defective condition exists on the property of another so as to create liability depends on the circumstances of each case and is generally a question of fact for the jury" (Perez v 655 Montauk, LLC, 81 AD3d 619, 619; see Trincere v County of Suffolk, 90 NY2d 976, 977; Vani v County of Nassau, 77 AD3d 819). Although some defects are trivial and, therefore, not actionable as a matter of law (see Trincere v County of Suffolk, 90 NY2d at 977; Vani v County of Nassau, 77 AD3d at 819), "[i]n determining whether a defect is trivial as a matter of law, a court [*2]must examine all of the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect, along with the time, place, and circumstances of the injury" (Perez v 655 Montauk, LLC, 81 AD3d at 619-620; see Trincere v County of Suffolk, 90 NY2d at 977-978; Sabino v 745 64th Realty Assoc., LLC, 77 AD3d 722).

The defendants failed to establish their prima facie entitlement to judgment as a matter of law on the basis that the wooden platform did not constitute a defective condition (see Mayo v Santis, 74 AD3d 470; Argenio v Metropolitan Transp. Auth., 277 AD2d 165; see also Mishaan v Tobias, 32 AD3d 1000) or that any defect was trivial in nature (see Trincere v County of Suffolk, 90 NY2d 976; DePascale v E & A Constr. Corp., 74 AD3d 1128, 1131; Richardson v JAL Diversified Mgt., 73 AD3d 1012; Hahn v Wilhelm, 54 AD3d 896).

Please note that for those of you handling New York City Elevator Accidents the old system of Local Law 10/81 inspections and two year tests ended on January 1, 2009. The new rule published on April 14, 2010 requires the following inspections and test cycle:

"(5) Inspection and test cycle.

(i) Category 1. Except as otherwise provided by the
commissioner, January first through December thirty-first of each
year.

(ii) Category 3. Except as otherwise provided by the
commissioner, within three (3) years from the month of issuance of
a final certificate for a new elevator or within three (3) years from
the month of the most recent category 3 periodic inspection and
test performed on an existing elevator.

(iii) Category 5. Except as otherwise provided by the
commissioner, within five (5) years from the month of issuance of a
final certificate for a new elevator or within five (5) years from the
month of the most recent category 5 periodic inspection and test
performed on an existing elevator."

For a copy of the new rules click here.

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