Author of Labor Law Periodical Still Very Excited about Labor Law
*confetti* We have a case update! And our 150th Labor Law Submission! *confetti*
You’ll recall from our submission, “Alliteration Part II”, we wrote about window washers and the labor law. In that submission we outlined the lower Court’s decision as to the summary judgment motions and now have an update with regard to one of the defendant’s appeals in that matter.
In a recent decision, the Appellate Division, First Department unanimously modified a Supreme Court, New York County decision that granted a defendant’s motion for summary judgment to dismiss plaintiff’s Labor Law § 240(1) cause of action.
Briefly, in Barrto v. The Board of Managers, plaintiff alleged that he was injured while washing exterior windows at an 11-story building. Plaintiff was to rappel down the side of the building and was given a main line rope and boatswain’s char. Plaintiff also had a safety line, which was anchored to the roof to prevent him from falling in the event of a break or other problem with the main line. While cleaning the upper windows of the building, plaintiff’s main rope parted, and he fell approximately 10-15 feet to a terrace below, and testified that the lanyard attached to plaintiff’s harness, meant to lock in place and arrest any potential fall, failed to grab. Plaintiff also refused the use of a rope guard to guard against rope separation.
In its decision, the Appellate Division, First Department upheld the lower Court’s decision regarding denial of to all parties as to Labor Law § 240(1), holding that while plaintiff established a prima facie entitlement to summary judgment by showing that his accident arose from a gravity-related risk against which the defendant failed to adequately protect him, the defendant’s experts raised an issue of fact as to whether plaintiff’s failure to use a rope guard (to prevent steel paneling from severing the rope) and to properly position his rope grab above his head was the sole proximate cause of the subject incident.
We have a good ole’ fashioned battle of the experts here. The First Department upholds the lower Court’s decision on the basis that their experts conclude that plaintiff failed to properly position his rope grab above his head was the sole proximate cause of the subject incident. It further agreed with the lower Court due to the disputed testimony regarding the rope grab and how plaintiff had positioned it.
Also a classic line from the lower Court’s decision:
“…[W]hile hindsight may indicate that plaintiff perhaps should have used the rope guard…”
The Barreto v. Board of Mgrs. of 545 W. 110th St. Condominium 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.