First Department Affirms Denial, But Declines to Look for Summary Judgment for Plaintiff
In a recent decision, the Appellate Division, First Department unanimously affirmed a Supreme Court, Bronx County decision that denied defendant’s motion for summary judgment to dismiss plaintiff’s Labor Law § 240(1) claim, § 241(6) claim as predicated on Industrial Code § 23-1.7(a)(1) and § 200 and common-law negligence claim.
In Delcid v. Park Ave. Christian Church, 2024 NY Slip Op 05401, plaintiff asserts that he was injured on a construction site when a piece of construction material known as “WonderBoard”, which had been screwed into the lobby wall the day before the subject incident, fell on him. The First Department agreed with the lower Court that defendant’s argument that § 240(1) claim did not cover the WonderBoard because it was a permanent fixture was unavailing because it was not part of the preexisting structure before the work began. Further, discrepancies among witness testimony as to whether the WonderBoard was actually installed on the walls in the lobby raised a triable issue of fact.
The First Department also declined to search the record to grant plaintiff summary judgment on his Labor Law § 240(1) claim.
As to the Labor Law § 241(6) claim as predicated on Industrial Code § 23-1.7(a)(1), the First Department affirmed the lower Court’s finding that material issues of fact exist as to whether the lobby where plaintiff was struck was “normally exposed to falling material or objects.”
Finally, the First Department held that the lower Court properly found triable issues of fact as to the Labor Law § 200 and common-law negligence claims. The accident was caused by “the manner in which the work was performed, and defendant’s submissions failed to establish prima facie that they lacked control over the activity that caused the injury.
It’s always a gift when the First Department declines to search the record and grant plaintiff summary judgment as to Labor Law § 240(1).
The Delcid decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
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