Second Department Redlines Plaintiff’s Pleadings Resulting in Summary Judgment

We’re giving serious consideration to starting a subseries of cases where the plaintiff fails to properly allege an Industrial Code section, does nothing about it until after discovery is complete, and then is permitted to amend while moving for or opposing summary judgment.  But I digress . . .

In a recent decision the Appellate Division, Second Department modified a Supreme Court, Queens County decision that granted defendants’ motion for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200, common law negligence, and Labor Law § 241(6) as predicated, in effect, on a violation of Industrial Code § 23-1.8(a).  Here, “in effect” is a term of art, and means that the lower Court granted the defendants’ motion to dismiss the Labor Law § 241(6) claim as though it was predicated on § 23-1.8(a) even though it was not specifically alleged in plaintiff’s Bill of Particulars.   

In that same decision, the Supreme Court, Queens County denied plaintiff’s cross-motion for leave to amend the bill of particulars to include Industrial Code § 23-1.8(a).

In Gonzalez v. City of New York, 2024 NY Slip Op 02801 (2d Dep’t 2024), plaintiff allegedly sustained an eye injury while engaged in the dismantling of a scaffold that had been erected on the exterior of a school.  Plaintiff testified that he was trying to separate two scaffolding planks held together by a screw.  He attempted to dislodge the planks by placing a hammer on a plank, then striking that hammer with another hammer.  Plaintiff testified that in doing so, it created a spark, which struck him in the eye.  He was not wearing eye protection at the time of the accident. 

Upon review, the Second Department agreed with the lower Court’s ruling with respect to dismissal of plaintiff’s Labor Law § 200 and common law negligence claims as the defendant owner and general contractor did not exercise supervisory control over the operation, no liability attaches as to these claims.

With regard to plaintiff’s § 241(6) claim, the Second Department held that the lower Court improvidently granted that portion of defendants’ motion.  In order to establish prima facie entitlement to summary judgment, a defendant must show that plaintiff failed to (1) identify a section of the Industrial Code that was allegedly violated, (2) that such section is insufficiently specific to support liability or is inapplicable to the facts of the case, or (3) that the defendant complied with the requirements of that Industrial Code provision. 

As to § 23-1.8(a), it provides that:

“[a]pproved eye protection equipment suitable for the hazard involved shall be provided for and shall be used by all persons while employed in welding, burning or cutting operations, or in chipping, cutting or grinding any material from which particles may fly, or while engaged in any other operation which may endanger the eyes.”

The Second Department held that the defendants failed to establish prima facie their entitlement to summary judgment with respect to this specific provision of the Industrial Code as their submissions failed to eliminate triable issues of fact as to whether the defendants’ failure to require the plaintiff to wear safety goggle was a proximate cause of his alleged injury. 

The Second Department then noted that the lower Court improvidently denied the portions of plaintiff’s cross-motion to amend the Bill of Particulars to include Industrial Code § 23-1.8(a), holding that leave to amend the pleadings to identify a specific Industrial Code provision may be properly granted, even after the Note of Issue has been filed, where (1) plaintiff makes a showing of merit regarding that Industrial Code section and (2) the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant.  The Second Department found that plaintiff satisfied both prongs of the test, and leave to amend should have been granted. 

The Gonzalez decision can be found here.

For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.

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