Fourth Department Upholds Denial of Plaintiff’s Summary Judgment Motion to Account for Alternative Account of Incident
In a recent decision, the Appellate Division, Fourth Department affirmed a Supreme Court, Monroe County decision that denied plaintiff’s motion for summary judgment as to his Labor Law § 240(1) cause of action.
In Krause v. Industry Matrix, LLC, 2024 NY Slip Op 02653 (4th Dep’t 2024), plaintiff commenced a Labor Law § 240(1) cause of action seeking damages for injuries that he sustained when he fell from a ladder while performing chimney pointing work on a residential building owned by defendant. Plaintiff alleged that as he was descending the ladder while performing the pointing work, the ladder “suddenly and unexpectedly shifted.”
In its decision, the lower Court held that plaintiff met his initial burden on moving for summary judgment as to Labor Law § 240(1) by establishing that the ladder was not placed (or set up properly) as to give proper protection to plaintiff. The burden then shifted to defendant to raise a triable issue of fact as to whether plaintiff’s own conduct, rather than any violation of Labor Law § 240(1), was the sole proximate cause of his accident. The lower Court concluded that the defendant met that burden by submitting evidence suggesting that plaintiff fell from the ladder because he missed a step while descending, not because the ladder shifted or otherwise failed. The Fourth Department affirmed.
We note, this account came from inadmissible hearsay in the form of hospital records containing a statement by plaintiff blaming the fall on missing a step. The Fourth Department also noted that such evidence was properly considered by the lower Court, because it was not the only proof relied upon by the defendants in opposition to plaintiff’s motion.
There is a dissenting opinion here, which is worth mentioning, that agrees preliminarily with the majority opinion in that plaintiff met his initial burden on summary judgment as to his Labor Law § 240(1) claim. However, when the burden shifted to the defendant to show that plaintiff was the sole proximate cause of the subject incident, the dissent took the position that defendant failed to satisfy the first prong of a four-factor test, namely that plaintiff had adequate safety devices available. The dissent focused on the lack of expert affidavits submitted by defendants or admissions by plaintiff that there was “equipment on site that was adequate to allow plaintiff to safely complete his assigned task at the time of the accident.”
The majority opinion briefly addressed the dissenting opinion by noting that the issues addressed by the dissent were not properly before the Court on appeal and therefore did not address that argument’s merits.
The Krause decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
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