Defendants’ Verdict Against Construction Worker Reversed Summary Judgment Granted For Plaintiff on Section 240(1) Cause Of Action

In Losito v Manlyn Dev. Group, Inc., 2011 NY Slip Op 05463, Second Department, June 21, 2011, the plaintiff was required to jump through some hoops but finally prevailed on his cause of action claiming a violation of Section 240(1) of The New York Labor Law.

On January 16, 2009 The lower court denied plaintiff’s motion for summary judgment. Thereafter following a jury verdict for defendants and entry of judgment on same, The Second Department, on April 19, 2011, reversed the judgment, reinstated the 240(1) cause of action and granted plaintiff’s original motion on his 240(1) cause of action. Based on the facts as set forth in the opinion it is difficult to understand why the motion was denied in the first place. The Court held as follows;

“The plaintiff, on his motion for summary judgment on the cause of action alleging a violation of Labor Law § 240(1), against the defendants Manlyn Development Group, Inc., and FB of Long Island, LLC (hereinafter together the respondents), established, prima facie, that the A-frame ladder on which he was standing was defective and collapsed, causing his injuries (see Monioudis v City of New York, 82 AD3d 945; Zhu Wei Shi v Jun Lan Zhang, 76 AD3d 558, 559; Sozzi v Gramercy Realty Co. No. 2, 304 AD2d 555, 556).

In opposition, the respondents failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 560). In particular, the respondents failed to raise a triable issue of fact as to whether the foreman’s act of stepping on the back of the plaintiff’s ladder just before it broke was a “of such an extraordinary nature or so attenuated from the statutory violation as to constitute a superseding cause sufficient to relieve [them] of liability” (deSousa v Dayton T. Brown, Inc., 280 AD2d 447, 448; see Quinteros v P. DeBlasio, Inc., 82 AD3d 861; Montalvo v J. Petrocelli Constr., Inc., 8 AD3d 173, [*2]175; Van Eken v Consolidated Edison Co. of N.Y., 294 AD2d 352, 353; Cordero v Kaiser Org., 288 AD2d 424, 426; Mooney v PCM Dev. Co., 238 AD2d 487).”
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The leading case on the question of “superceding cause” remains The Court of Appeals decision in Kush v. City of Buffalo, 59 N.Y.2d 26, 462 N.Y.S.2d 831 (1983) which clearly set forth the circumstances under which a defendant will be relieved of liability by an intervening act;

“An intervening act will be deemed a superseding cause and will serve to relieve defendant of liability when the act is of such an extraordinary nature or so attenuates defendant’s negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant (see, e.g., Martinez v. Lazaroff, 48 N.Y.2d 819, 424 N.Y.S.2d 126, 399 N.E.2d 1148;Kingsland v. Erie County Agric. Soc., 298 N.Y. 409, 84 N.E.2d 38, supra; Perry v. Rochester Lime Co., 219 N.Y. 60, 113 N.E. 529; Hallenbeck v. Lone Tar Cement Corp., 273 App. Div. 327, 77 N.Y.S.2d 807, affd. No opn.299 N.Y. 777, 87 N.E.2d 679). When, however, the intervening act is a natural and foreseeable consequence of a circumstance created by defendant, liability will subsist (see Derdiarian v. Felix Constr. Co., supra; Paravi v. City of Kingston, 41 N.Y.2d 553, 394 N.Y.S.2d 161, 362 N.E.2d 960; Prosser, Torts [4th ed.], Section 44, pp. 272-280).”

The New York Construction Accident Attorneys at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf have years of experience representing construction workers who have suffered injury and /or death in construction accidents in New York.