First Department Upholds Summary Judgment for Plaintiff with Minimal Discovery Exchanged
Usually, in a civil action in New York, especially one involving liability under Labor Law § 240(1), some discovery needs to be completed to establish a prima facie case for summary judgment. However, as the First Department shows us, that isn’t always the case.
In Blacio v. Related Construction, LLC, 2024 NY Slip Op 02008, plaintiff and his co-worker were transporting large wooden panels from the basement to the 12th floor of a construction project. To transport the panels, plaintiff and his co-worker had to walk past a stairway on the 12th floor. On June 20th, 2022, as plaintiff walked past the stairway, he fell through an unguarded stairway opening. Plaintiff brought multiple causes of action, including for a violation of Labor Law § 240(1). Prior to responding to defendants’ discovery demands or depositions taking place, and with only a Bill of Particulars and Supplemental Bill of Particulars exchanged, plaintiff moved for summary judgment.
The Supreme Court, New York County denied plaintiff’s motion for summary judgment, holding that plaintiff failed to eliminate all material issues of fact. This holding was supported by an affidavit of the Site Safety Manager, who indicated that a barrier was installed on Friday, June 17, 2022, and that someone, such as plaintiff or their employer, must have removed the barrier before the accident occurred on Monday, June 20, 2022. The lower Court further cited issues of fact as to whether plaintiff may have contributed to the accident by not using protective gear, and whether the defendant actually provided protective gear to the plaintiff and workers.
The First Department disagreed and reversed the lower Court’s decision. It noted that the affidavit of the Site Safety Manager “averring that the plywood barrier was installed days before the accident is irrelevant” because liability under Labor Law § 240(1) is not dependent on a finding that the owner or general contractor had notice of the violation. It further held that the assertion by defendants that plaintiff removed the plywood barrier was speculative and insufficient to raise a material issue of fact.
Lastly, the First Department turned to the contention by defendants that the plaintiff’s motion was premature. It stated, “the fact that no depositions have been taken does not preclude summary judgment in plaintiff’s favor” as defendants “failed to show that discovery might lead to facts that would support their opposition to the motion” and failed to show that facts essential to their opposition were within plaintiff’s exclusive knowledge. The First Department also noted that the argument by defendants raised regarding deposition testimony illuminating issues raised by the affidavits was undermined by their failure to obtain whatever third-party testimony they needed in order to oppose plaintiff’s motion.
The Blacio decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
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