Second Department Affirms Erasers Exist on Pencils to Correct Labor Law Typos
We all make mistakes. Sometimes that mistake is a typographical error that plead a section of the Labor Law that doesn’t exist. If you expected this would be fatal to a Labor Law claim, the Second Department would disagree with you.
In a recent decision, Castillo v. Hawke Enters., LLC, 222 A.D.3d 827, 202 N.Y.S.3d 246 (2d Dep’t 2023), the Second Department reversed a lower court decision that denied plaintiff’s motion to amend the amended complaint and the bill of particulars[1]. Plaintiff alleges he sustained injuries while he and his co-worker attempted to lower a 194-pound cylinder from a height of 10 to 11 feet above the ground, while performing work on a fire-suppression system at a gas station in Suffolk County. While lowering the cylinder, plaintiff’s co-worker dropped it approximately four inches, trapping the plaintiff’s hand between the cylinder and pillar, injuring plaintiff’s middle finger.
Plaintiff then commenced an action, alleging violations of “sections 241 and 241(b) of the Labor Law.” (emphasis added). Subsequently, Plaintiff moved for summary judgment on the issue of liability pursuant to Labor Law § 240(1). Defendant opposed the motion, arguing, inter alia, that plaintiff did not plead a Labor Law § 240(1) cause of action, and that § 240(1) was nevertheless inapplicable because plaintiff’s work was routine maintenance.
After the parties filed summary judgment motions, plaintiff moved to amend the amended complaint and bill of particulars, claiming that the reference to “Labor Law §§ 241 and 241(b)” was a typographical error. The Supreme Court, Suffolk County ultimately denied the plaintiff’s motion for leave to amend as the proposed amendment was “patently devoid of merit.” The lower Court then granted the defendants’ motion for summary judgment dismissing plaintiff’s complaint.
In its decision, the Appellate Division, Second Department held that the lower court improvidently exercised its discretion in denying plaintiff’s motion for leave to amend the amended complaint and bill of particulars, as the proposed amendment entailed no prejudice or surprise to the defendants, and was not palpably insufficient or patently devoid of merit.
Further, the Second Department held that despite the fact that plaintiff had not yet properly pleaded a Labor Law § 240(1) cause of action at the time he made a motion for summary judgment on the issue of liability pursuant to § 240(1), summary judgment may be awarded on an unpleaded cause of action if the proof supports such cause and if the opposing party has not been misled to its prejudice.
Though the Second Department held that plaintiff was free to amend the amended complaint and could be granted summary judgment on an unpleaded cause of action, it ultimately denied both plaintiff’s and defendants’ motions for summary judgment as they both failed to meet their prima facie burdens. Plaintiff failed to prove, as a matter of law, that he sustained the type of elevation-related injury that Labor Law § 240(1) was intended to protect against. Defendants failed to establish that plaintiff was engaged in routine maintenance, and not repairs within the purview of the statute, at the time of the subject incident, or that plaintiff was the sole proximate cause of his injuries.
The Castillo decision can be found here.
For additional questions, please contact Michael J. Shields, Esq. and/or Philip D. Priore, Esq.
This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers. This publication is in no way intended to provide legal advice or to create an attorney-client relationship. All Rights Reserved. This article may not be reprinted without the express written permission of McCormick & Priore, P.C.
[1] The bill of particulars, though technically not a discovery device, is unique to New York practice and can include a list of questions from one party to another asking for further details about a claim or defense. Industrial Code sections, for the purposes of Labor Law § 241(6), are routinely pleaded in the bill of particulars.
