Preclusion Spoils Defendant’s Opposition Plans
On a normal day, it’s tough to be a Labor Law defendant in the State of New York. In a recent decision, the First Department shows us just how much worse it can get if Labor Law defendants forget the fundamentals of New York practice.
In Moscinski v. Quadrum 38 LLC, 2024 NY Slip Op 01781 (1st Dep’t 2024), the Appellate Division, First Department unanimously upheld a Supreme Court, New York County decision that granted the portion of plaintiff’s motion for summary judgment which concerned his Labor Law § 200 claim.
Plaintiff alleged that while working at a construction site, he was pushing a cart, moving between rooms, when, walking by a fire extinguisher stand, the fire extinguisher fell on his left foot. Plaintiff moved for summary judgment, relying on his deposition testimony, several accident reports generated after the accident, and the testimony of plaintiff’s foreman, who testified after the accident that plaintiff told him he hit the subject fire extinguisher stand. Third-party defendant also moved for summary judgment to dismiss the third-party action, and submitted expert reporting demonstrating the fire extinguisher stand was constructed in a manner conforming to applicable codes.
In this matter, defendant/third-party plaintiff is in the precarious position of fending off a motion for summary judgment as to plaintiff’s Labor Law § 200 claim, as well as a motion for summary judgment dismissing the third-party action for indemnification and contribution from the third-party defendant. Upon initial review of the First Department’s decision, the reader will notice it is suspiciously void of evidence submitted by the defendant in opposition to this two-front procedural war.
However, the First Department gives us a look at the procedural history here, which indicates that just before plaintiff moved for summary judgment on his Labor Law § 200 claim, the Supreme Court, New York County granted a previous motion precluding the defendant from offering any evidence as to the condition of the fire extinguisher due to an admitted failure to preserve the subject fire extinguisher. As a result, plaintiff demonstrated his entitlement to summary judgment because defendant could not raise an issue of fact due to the preclusion.
While it may be like fighting with one hand tied behind your back as a Labor Law defendant in New York, it can get worse with two hands tied behind your back if you’re precluded from offering evidence. Spoliation may not have been the fault of the attorneys in this case but it is one of many avenues to preclusion.
The Moscinski decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, 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.
