Accident Straight Out of Michael Bay Movie Not Enough for Summary Judgment on Plaintiff’s § 240(1) Claim
The Supreme Court, New York County, recently denied a motion for summary judgment by plaintiff as to a Labor Law § 240(1) claim. While this is news in and of itself, the Court also denied plaintiff’s motion to amend the Bill of Particulars to add sections of the Industrial Code to support a § 241(6) claim.
In Simon v. 4 World Trade Center LLC, 2024 NY Slip OP 31799(U), plaintiff alleges that he was injured in a gravity-related incident from a heavy A-frame cart. At the time of the subject incident, plaintiff was an employee of the general contractor on the subject jobsite. Just before the accident, the subject A-frame cart was loaded with glass panels, which were approximately 4 feet by 8 feet, weighing 200-300 pounds.
The details of the subject incident are straight out of an action movie and involve flying glass, exploding out of a compactor truck, which impacted the A-frame cart. The exploding glass was moving at a sufficient speed and was of a sufficient size, to knock over the A-frame cart, and glass panels on the cart, onto plaintiff, who was hiding behind the A-frame cart to avoid the exploding glass.
The Court ultimately sided with defendants’ opposition to plaintiff’s motion as to § 240(1), noting that plaintiff failed to eliminate triable issues of fact regarding the use of the A-frame cart by plaintiff as a safety device, the supervision of the owner and general contractor of the worksite including securing the A-frame cart and the glass panels, and the use of the truck compactor. It citied to long-standing precedent that held “though the risk here arose from a physically significant elevation differential, it remains to be seen whether plaintiff’s injury was the direct consequence of the defendants’ failure to provide adequate protection against the risk.”[1]
In addition to moving for partial summary judgment on the basis of Labor Law § 240(1), plaintiff sought leave to amend the Bill of Particulars, to add a violation of the Industrial Code § 23-2.1(b), pertaining to proper disposal of debris, which would support that aspect of a Labor Law § 241(6) claim. The defendants opposed, arguing that the section of the Industrial Code plaintiff seeks to add is insufficient to support a claim under the Labor Law.
The Court noted that while the it has the power to grant leave to plaintiff to amend the Bill of Particulars and leave to amend is generally freely granted absent prejudice and surprise resulting from the delay, the plaintiff in this action failed to offer any explanation as to why he waited until discovery had concluded, and after the Note of Issue was filed, to seek to amend the Bill of Particulars to add a new theory of liability. The Court also noted that the specific section that plaintiff sought to add to the Bill of Particulars was insufficiently specific to qualify as a predicate for Labor Law § 241(6) cause of action. As such it denied the portion of the motion seeking to amend the Bill of Particulars.
The Simon 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.
[1] Wilinski v. 335 E. 92nd Housing Dev. Fund Corp., 18 N.Y.3d 1, 10 (1st Dept’ 2011).
