Unqualified Expert Keeps Plaintiff’s § 240(1) Claim on Ground Floor
Expert witness submissions are pattern and practice in the summary judgment phase for Labor Law § 240(1) cases and a solid expert can “make or break” a summary judgment motion. It’s important to remember that these submissions are subject to their own rules. Experts, for instance, should be qualified to provide an opinion in their field of expertise. This baseline rule was on display in a recent decision from Supreme Court, New York County.
In Grumelli v. 75 Plaza LLC, 2024 NY Slip Op 30236(U) (Sup. Ct. N.Y. Cty. 2024), plaintiff was working on a major building renovation which required his employer to install new elevators, and modernize existing elevators, at the subject premises. Plaintiff was performing “wire drops” from the elevator controller located in the monitor room above the top of the elevator shaft. To accomplish this, he stood on top of the elevator car. In order to move the elevator car from the top of the shaft to the bottom, plaintiff utilized a pendant run box, which had an “up”, “down” and “stop” button on the end of a temporary cable.
After the completion of his work, he remained on top of the elevator car while it was on the ground floor, organizing and cleaning his work area. After approximately four or five minutes of being on the ground floor, the lights on top of the elevator car, powered by the temporary cable, went out. Plaintiff recalled hearing a banging sound in the distance, which gradually became louder, until the temporary cable hit plaintiff, knocking him flat on the top of the elevator car. It was later discovered that the temporary cable was spliced to add extra length, and plaintiff alleged the splice was not properly supported or braced, and was caused to fail, resulting in the cabling falling 30 stories onto him.
In support of his motion for summary judgment, plaintiff submitted the opinion of an expert who indicated that there were no safety devices in place to protect plaintiff, and, inter alia, this resulted in the subject incident. Defendants opposed plaintiff’s motion and asserted plaintiff’s expert was unqualified to provide an opinion regarding safety procedures.
The Court denied plaintiff’s motion for summary judgment, indicating that the credentials of plaintiff’s expert were insufficient to warrant a determination as a matter of law on what safety procedures must be carried out during the renovation and modernization project. Further, the Court indicated that though the expert obtained a two-year degree abroad leading to a certificate in engineering, he had no formal training in elevator maintenance or repair and was not a professional engineer. He did not have an applicable license, did not hold a four-year degree and has never performed maintenance on an elevator.
In addition to the lack of qualification of plaintiff’s expert, the Court noted that the expert did not cite to any NYC Department of Buildings Code, or New York State Industrial Code provision, that requires an elevator car be outfitted with overhead protection, or state that it is general practice in the elevator industry to install such overhead protection.
We note, as the Court did in this decision, that attainment of a four-year degree is not the determinative test for finding that an expert is competent; such competence may also derive from long observation or real world experience.
The Grumelli decision can be found here.
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