Decision Highlights Differing Artistic Visions of Accident between Supreme Court and First Department
In a recent decision the Appellate Division, First Department unanimously reversed a Supreme Court, New York County decision that denied plaintiff’s motion for summary judgment as to his Labor Law § 240(1) cause of action.
In McCormick v. DiPersia, 2025 NY Slip Op 03019, plaintiff alleged that he was injured when he jumped into an excavated trench to perform his work. The record is clarified in the Supreme Court, decision, that indicates plaintiff was injured when he attempted to step from a portion of concrete pavement next to the trench, and the concrete collapsed, causing him to fall into the trench.
The depth of the trench is subject to some speculation. Plaintiff testified that the trench was approximately five-to-seven feet deep. The owner of the subject site indicated the trench would have been approximately three feet deep. An expert affidavit submitted by defendants in opposition to plaintiff’s motion for summary judgment indicated that the trench was approximately two feet deep.
In any event, the Supreme Court, New York County denied plaintiff’s motion. In its decision, the Court noted that the dispute as to the depth of the trench was irrelevant, as regardless of the depths disputed by the parties, the trench still represented an elevation differential that constitutes a gravity-related risk constituted under the statute. The Supreme Court viewed this as a “falling object case” noting that a question of fact existed as to whether the concrete should have been secured, given the fact that it may not have been practical to secure the trench or to brace the concrete walkway.
The First Department disagreed and unanimously reversed the lower Court’s decision, instead framing this as a falling worker case, wherein providing a ladder or a ramp to allow plaintiff to climb down into the trench safely was required. The failure to provide a safety device in the form of a ladder or ramp constituted a violation of Labor Law § 240(1) that proximately caused plaintiff’s injuries, entitling him to summary judgment.
Not much in the way of commentary here – just a classic conflict between how the incident occurred between the Supreme Court and the First Department. Supreme Court looked at this accident as a falling object accident, due to the fact that the concrete surrounding the trench collapsed, causing the injury. The First Department disagreed, holding that the fall into the trench caused the injury, making this a falling worker case.
The McCormick decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
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