Second Department Determines Reliable Historian Talked His Way into Question of Fact
Sometimes all a plaintiff needs to say is that the ladder moved, and plaintiff fell off of it, to establish prima facie entitlement to summary judgment in a Labor Law § 240(1) case. However, the Second Department reminds us of the potential peril to a summary judgment motion when plaintiff gives conflicting accounts of the subject incident.
The Second Department recently modified a Supreme Court, Kings County order that granted Plaintiff’s motion for summary judgment as to his Labor Law § 240(1) and § 241(6) claims. In Moran v. Trustees of Columbia University in the City of New York, 2024 NY Slip Op 00902 (2d Dep’t 2024), plaintiff alleged he was injured when he fell from a ladder while working for his employer, the third-party defendant during a renovation project.
After completion of discovery, plaintiff moved for summary judgment on the issue of liability as to §§ 240(1) and 241(6). The lower Court granted plaintiff’s motion as to the §§ 240(1) and 241(6), but the Second Department disagreed. In its decision, the Second Department noted that while plaintiff alleged that he was injured when he fell from a defective ladder, the record contained conflicting evidence as to the manner in which the accident happened, including as to whether a ladder was involved in the accident. This failed to eliminate triable issues of fact as to whether a violation of Labor Law § 240(1) proximately caused the subject incident.
We note, after an examination of the submissions by the respective parties, plaintiff alleged that he was applying compound to a ceiling and standing on top of a six-foot-tall ladder, just prior to the subject incident. Defendant’s submission contained evidence that plaintiff gave an alternate account of the subject incident, and that plaintiff indicated to medical personnel that he fell approximately two feet, rather than from atop a six-foot-tall ladder, and that he was standing on bags of concrete approximately two feet off the ground when he lost his balance. The medical records further note that plaintiff was a “reliable historian” when he gave his account to medical personnel shortly after the accident.
We’ve covered cases where evidence of plaintiff’s conflicting testimony was insufficient to overcome plaintiff’s prima facie entitlement to summary judgment, particularly in the First Department. It is clear, however, that the Second Department affords significant weight to plaintiff’s conflicting statements, especially the notion that he was a reliable historian, found in his medical records.
The Moran decision can be found here.
For additional questions, please contact Michael J. Shields, Esq. and/or Philip D. Priore, Esq.
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