Multiple Inconsistencies Can’t Keep Summary Judgment at Bay
How much inconsistency is enough inconsistency?
In a recent decision, the Appellate Division, First Department unanimously affirmed a Supreme Court, Bronx County decision that granted plaintiff’s motion for partial summary judgment as to his Labor Law § 240(1) claim and denied defendant’s cross-motion to dismiss plaintiff’s Labor Law § 240(1) claim.
In Mosquera v. TF Cornerstone Inc., et al, 2024 NY Slip Op 04610, plaintiff alleged that he fell off the edge of a bathtub he was standing on to pain a room’s upper corners at a construction site, because the ladders provided to him did not fit inside the tub when they were opened. In a relatively brief decision, the First Department upheld the lower Court’s decision, which granted summary judgment to plaintiff. It noted that while there was evidence and testimony submitted that contradicted plaintiff’s narrative of the subject incident, that evidence and testimony was insufficient to create an issue of fact to warrant denial of plaintiff’s summary judgment motion.
Turning to the underlying submissions, the defendants submitted the following in an effort to establish a question of fact as to how the subject incident occurred:
- Plaintiff initially testified that the subject incident took place while he was standing at the bottom of the bathtub, not on the elevated side of the bathtub, but later changed his testimony after questioning by his attorney;
- Plaintiff completed a Workers’ Compensation Questionnaire Form which provided a description of the accident that indicated he fell back in the bathtub while he was sitting on it; and,
- Plaintiff’s medical records, which contained a narrative provided by plaintiff, that indicated he was standing inside a bathtub when he slipped and fell backwards.
The First Department briefly noted that the description of the subject accident in the Workers Compensation Questionnaire Form did not create a question of fact because it does not have the “certification of a translator indicating that the plaintiff’s words were accurately translated from Spanish.” The Court noted that Plaintiff’s medical treatment records were similarly flawed, because they did not have the certification of a translator and were also uncertified. The Court did not address the discrepancy between plaintiff’s initial testimony and his later testimony after questioning by his attorney.
We note, that if plaintiff had been standing at ground level inside the bathtub at the time of the accident, Labor Law § 240(1) would likely not have been implicated as plaintiff would not have fallen from a height.
There’s no clear line as to what constitutes a sufficient level of inconsistency in order to establish a question of fact, and the First Department does not appear inclined to give us any hint as to what might qualify. We’ve noticed this is different in the Second Department, which seems more inclined to deny motions for summary judgment in Labor Law § 240(1) cases on the basis of a question of fact when plaintiff has given multiple, conflicting narratives of the subject incident. It’s also curious that the First Department addressed each inconsistent statement and its insufficiency in establishing a question of fact, but did not address plaintiff’s seemingly conflicting deposition testimony.
The Mosquera can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
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